RAILROAD REPORTS

HARRIS et al. v. MISSOURI, K. & T. RY. Co.

(Supreme Court of Oklahoma, July 13, 1909.)

[103 Pac. Rep. 758.]

Trial-Motion to Direct Verdict. The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict should the jury find in accordance therewith. Where the evidence is conflicting, and the court is moved to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration, and totally disregarded, leaving solely the evidence for consideration which is favorable to the party against whom such action is leveled.

Negligence Question for Jury.—In cases involving the question of negligence, the rule is now settled that, when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered one of law for the court. Railroads Injuries to Animals on Track-Duty of Trainmen.*—It is not enough for the engineer and fireman in charge of a railway locomotive and train to use diligence merely in driving animals away that are discovered upon the track; they should keep a vigilant lookout, and exercise ordinary diligence to frighten away animals that may be discovered approaching, or in dangerous proximity to the track, by sounding the whistle, ringing the bell, and using the means provided for that purpose.

(Syllabus by the Court.)

*For the authorities in this series on the subject of the duty to maintain lookouts on trains for the purpose of preventing_collisions with live stock, see second paragraph of foot-note of McDonnell v. Minneapolis, etc., Ry. Co. (N. Dak.), 31 R. R. R. 471, 54 Am. & Eng. R. Cas., N. S., 471.

For the authorities in this series on the subject of the duties of those in charge of trains upon seeing stock near track, see foot-ncte of Wallace v. Oregon Short Line R. Co. (Idaho), 32 R. R. R. 712, 55 Am. & Eng. R. Cas., N. S., 712.

Harris v. Missouri, etc., Ry. Co

Error from District Court, Wagoner County; John H. King, Judge.

Action by William H. Harris and another against the Missouri, Kansas & Texas Railway Company. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.

Robert F. Blair, for plaintiffs in error.

Clifford L. Jackson, W. R. Allen, and Leon B. Fant, for defendant in error.

DUNN, J. On April 7, 1906, plaintiffs in error, who were plaintiffs below, filed their complaint in the United States Court for the Western District of the Indian Territory at Wagoner, wherein they alleged that on the 2d day of February, 1906, the defendant, its agents, servants, and employees, while running a freight train south over the track of its road into and through the town of Gibson Station, negligently failed to ring the bell or blow the whistle of its engine, or to slow the train down while passing through said town, carelessly and negligently collided with a mule belonging to plaintiffs, which mule had strayed on the track of defendant's railway, and this without any negligence of plaintiffs, thereby crippling the said mule, which its agents subsequently killed, and prayed for judgment for its value. To this complaint the defendant filed an answer, denying the averment of plaintiffs' complaint, and denying any liability under and by virtue of the things set forth therein. The trial of the cause was had on January 31, 1908, in the district court of Wagoner county, to a jury. On the conclusion of the evidence offered by the respective parties the court on motion directed the jury to return a verdict for the defendant, which was accordingly done. From the judgment rendered thereon dismissing plaintiffs' action the cause was appealed to this court by proceedings in error.

Counsel for plaintiffs take the position in this court that the trial court erred in not submitting the cause to the jury for its determination, contending that the evidence of negligence on the part of the servants and agents of the company as shown by the record was on the question of negligence sufficient to take the case to the jury. The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict should. the jury find in accordance therewith. Where the evidence is conflicting, and the court is moved to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration, and totally disregarded, leaving solely the evidence for consideration which is favorable to the party against whom such ac

Harris v. Missouri, etc., Ry. Co

tion is leveled. Baker v. Nichols & Shephard Co., 10 Okl. 685, 65 Pac. 100; 6 Encyclopædia of Pleading & Practice, p. 693; Cooper v. Flesner et al. (decided May term, 1909) 103 Pac. -. The foregoing states the rule generally applicable, and is the one adopted by this court. With it, then, for a test we will examine the evidence.

The record shows that the line of the defendant company's railway runs through Gibson Station on a straight and practically level track; that near this station, and on the west of said track, there is an old box car set down on the ground used for a toolhouse. The evidence further shows that on the evening of this accident the mule of plaintiffs had escaped from its inclosure, and was grazing along near the main line track, and south of the toolhouse and near to it, and about 20 feet from the main line track. The train approached from the north at a rate of speed of from 25 to 30 miles per hour, and the testimony is conflicting on the question of whether or not a whistle was sounded, the bell rung, or any other sounds of warning given as the train approached this point. In reference to the accident the plaintiffs offered the evidence of the fireman, which was taken by defendant by deposition and was then on file. He testified that the engineer first saw the mule about 25 or 30 car lengths from the engine; that it was standing on the passing track when first discovered, eating and grazing, and remained there until the train got in about two car lengths from it, when it stepped over on the main line in front of the engine, and was knocked off by the engine. A witness of plaintiffs testified that the point from where the mule started to the track was about 20 feet distant, and that the train was about 100 feet distant when the mule started to cross, and that when the mule got on the track, the train was 50 feet from it, and that it made two jumps on the track, amounting to about 20 feet before the train hit it. That the mule was 6 or 8 feet south of the toolhouse, grazing; that the toolhouse was between the train and the mule. It further appeared from the testimony that there was another mule near the place of accident, some of the testimony putting it on the same side of the track with the mule that was killed, other evidence to the effect that the track ran between the animals. It also appeared that the depot was on the east side of the track, and that the mules were south of this building, but that the same was not between them and the train, so that they could not be seen. The engineer testified that he was about 100 feet from the mule when he first discovered it; that his train was a freight train of 48 cars, and the brakes were in good condition; that the track was straight and just about level, running through clear land; that the reason he did not notice the mule was because it was behind the toolhouse; that the train was running at a rate of between 25 and 30 miles per hour, and that the signals which he gave were opening the

Harris v. Missouri, etc., Ry. Co

cylinder cocks, ringing the bell, and sounding the whistle, but that no effort was made to stop the train; that the signals were given about 50 feet from the point of the accident; that he could not have safely stopped the train and avoided the accident; that the mule was not on the track when he first saw it. It was also shown by a witness that a party standing south of the toolhouse, looking north in the direction from which the train came, could see up the track a quarter of a mile; that the mule was about 30 yards from the toolhouse to the point where it was struck. As we have seen, the theory of counsel for plaintiffs is that the mule was not obstructed from view of the engineer by the toolhouse, the fireman testifying that the engineer saw it about 25 or 30 car lengths from the engine, and that this theory is supported by the condition of the track, it being clear and level; that when, in accordance with the testimony of the engineer, the train did not slacken its speed, and in accordance with other evidence offered by plaintiffs no signals were sounded, there then arose a condition upon which a jury could reasonably conclude that the engineer of the defendant company was negligent in neither slacking the train nor giving any signals to frighten the animal from the track. As we have observed above, only that evidence will be considered in determining the question of whether or not a cause shall be submitted or withdrawn from the consideration of the jury which is favorable to the contentions of the party against whom the action is contemplated being taken. We neither pass upon the weight of the evidence, nor upon its preponderance, nor do we say what it proves. These are things solely within the province of a jury.

As was said by Circuit Judge Caldwell, in the case of Gulf, etc., Railway v. Ellis, 54 Fed. 481, 4 C. C. A. 454, in duscussing this question, where it arose in a case in which the court refused to give a peremptory instruction to the jury to find a verdict for the defendant: "If there is any evidence, direct or circumstantial, fairly tending to support the verdict, it must stand. Every presumption is in its favor, and all doubts must be resolved in its favor. This court will not weigh or balance the evidence. And in cases like the one at bar, which turn on the question whether the party exercised ordinary care or was guilty of negligence, after the usual and appropriate definitions of those terms by the court, it is in the province of the jury to say, from a consideration of the evidence, whether in the particular case ordinary care was exercised, or whether there was negligence. In other words, what is ordinary care, or what is negligence, in the particular case, is a question of fact for the jury, and not of law for the court. Railroad Co. v. Stout, 17 Wall. 657, 663, 664, 21 L. Ed. 745; Jones v. Railroad Co., 128 U. S. 443-445, 9 Sup. Ct. 118, 32 L. Ed. 478; Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485; Railroad Co. v. Foley, 53 Fed. 459, 3 C.

Harris v. Missouri, etc., Ry. Co

C. A. 589; Pol. Torts, 386 et seq. But, in the trial of every case. before a jury, there comes a time when it may be the duty of the court to decide, as a matter of law, whether there is sufficient evidence for the jury to found a verdict upon. If there is not, the practice in the federal courts is to instruct the jury to return a verdict for the defendant. Railway Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213. But the case should not be withdrawn from the jury unless the conclusion follows, as a matter of law, that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish. Railway Co. v. Cox, 145 U. S. 593, 606, 12 Sup. Ct. 905, 36 L. Ed. 829. And in cases involving the question of negligence, the rule is now settled that, 'when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered one of law for the court.' Railway Co. v. Ives, supra."

Counsel for defendant take the position in their brief that the animal was a trespasser, and the railway company owed no duty to it, except to use such efforts to keep from injuring it as a reasonably prudent person would use, after its danger was discovered, and that this duty would not begin until the animal started towards the track; that is did not exist while the mule was grazing upon the right of way. In this position we believe counsel are in error. Some of the cases referred to by Counsel for both parties in their briefs from the United States Court of Appeals of the Indian Territory would appear to go to the extent of supporting this claim, but the Circuit Court of Appeals of the Eighth Circuit, which was the court of last resort in such a case as this for that jurisdiction, has reversed a number of cases decided by the United States Court of Appeals of the Indian Territory, in which the question of law involved in stock-killing cases by railroads was before it. This holding would be controlling here. Gulf, etc., Railroad Co. v. Ellis, supra; Gulf, C. & S. F. R. Co. v. Johnson, 54 Fed. 474, 4 C. C. A. 447; Gulf, C. & S. F. R. Co. v. Washington, 49 Fed. 347, 1 C. C. A. 286; Eddy et al. v. Evans, 58 Fed. 151, 7 C. C. A. 129.

In the case of Eddy et al. v. Evans, supra, Judge Caldwell in his opinion stated the law on the facts involved therein as follows: "It was the duty of the engineer to keep a careful lookout for stock on the track, and, when it was discovered, to use all reasonable means to avoid injuring it. The engineer testifies that the horses were run into about midnight; that his engine was 50 feet from the first horse when he saw it, and the testimony of other witnesses tends to show that the second horse was 65 yards further from the engine than the first; that being the distance