Buss v. Chicago, R. I. P. R. Co. , 77 Okla. 80 ( 1920 )

John Buss, while working as a section hand for the railway company, was walking along the east side of the main track, and in attempting to cross the track in front of one of defendant's passenger trains was struck by the engine, receiving injuries from which he died. The trial court sustained a demurrer to the evidence offered on the part of plaintiff and the question for determination is whether there was sufficient proof of primary negligence on the part of defendant to take the case to the jury.

The allegations of negligence charge that the passenger train war, being run at a dangerous and unusual speed; that the engineer failed to give a proper warning, either by ringing the bell or by blowing the whistle, and failed to exercise proper care after discovering deceased in a dangerous position. From the evidence offered to sustain these allegations it appears the train was running not to exceed 15 miles pier hour; that Buss, walking south along the right of way, in the direction the train was moving, turned as though to look back and stepped across the west rail of the track immediately in front of the approaching train, and, as one of the witnesses, said, "was instantly hit by the engine."

A demurrer admits the truth of the evidence introduced and all the facts which it tends to establish, as well as every fair and reasonable inference, and should be overruled unless the evidence and all the Inferences which a jury could reasonably draw from it are insufficient to support a verdict. But where the evidence fails, entirely to show primary negligence, the court should sustain the demurrer and instruct the jury in favor of the defendant. Mid. V. R. Co. v. Graney, 77 Oklahoma; Helm v. Mickleson, 66 Oklahoma, 170 P. 704; Pet. Ir. Wks. v. Bullington, 61 Oklahoma,161 P. 538; Phoenix Print Co. v. Durham, 32 Okla. 575,122 P. 708.

The fact of accident or injury to an employe, in the course of his employment, carries with it no presumption of negligence on the part of the employer, but such negligence is an affirmative fact for the injured employe to establish by evidence. Mid. Val. R. Co. v. Graney, supra; Ponca City Ice Co. v. Robertson, 67 Oklahoma, 169 P. 1111; Phoenix Print. Co. v. Durham, supra.

Deceased being an employe of the defendant, the law did not impose upon defendant the duty to keep a lookout for him or to give him warning of the approaching train; defendant owed him no duty except not to willfully or intentionally injure him after discovering him in a position of danger. Chicago, R. I. P. R. Co. v. McIntire, 29 Okla. 797, 119 P. 1008; Bailey's Personal Injuries (2nd vol.) sec. 2727; 3 Elliott on Railroads (2nd Ed.) sec. 1283; Crowe, Adm'r. v. New York Cent. H. R. R. Co, 70 Hun 37, 23 N. Y. Sup. 1100; Aerfetz v. Humphreys,145 U.S. 418, 36 L. Ed. 758.

Defendant cannot be held liable under the rule of last clear chance, for the reason Buss was not in a position of danger until he stepped across the west rail when he was struck instantly. The last clear chance rule does not apply where the defendant does not discover the exposure to danger in time to prevent the accident. It applies where the employes having charge of the train fail or neglect to use all possible effort to avoid the injury after discovering the exposure to danger. St. Louis S. F. R. Co. v. Clark, 42 Okla. 638, 142 P. 396; Atchison, T. S. F. R. Co. v. Baker, 21 Okla. 51, 95 P. 433; Denver City Tramway Co. v. Cobb, 164 Fed. 41; Atchison, T. S. F. R. Co. v. Taylor, 196 Fed. 878.

It was not error for the court to sustain the demurrer to the evidence, and the cause is, therefore, affirmed.

RAINEY, PITCHFORD, JOHNSON, McNEILL, and HIGGINS, JJ., concur.