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1926 OK 491
246 P. 853
118 Okla. 94
Case Number: 16662
Decided: 05/25/1926
Supreme Court of Oklahoma

DAVIS et ux.
LAWSON et al.


¶0 1. Negligence--Proximate Cause.
In order to make a case of primary negligence, plaintiff must not only establish the negligence relied upon, but must prove a causal relation between such negligence and the injury complained of as proximately resulting therefrom.
2. Railroads--Liability for Personal Injuries--Lack of Evidence of Negligence.
A railroad company will not be held liable for personal injuries, where there is no positive evidence, no reasonable inference, to be drawn from the testimony that the railroad company was guilty of negligence.
3. Same -- Judgment for Defendants Sustained.
Under the foregoing, judgment for defendants on demurrer is affirmed.

Moss & Farmer and A. P. Carr, for plaintiffs in error.
O. E. Swan, Grinstead & Scott, Hamilton & Gross, and Charles R. Gray, for defendants in error.


¶1 Parties appear in the same order as in the trial court. Davis and wife, as next of kin, sued defendant Lawson, the engineer in charge of the freight train, and the Midland Valley Railroad Company, in damages for the death of their son. The line of defendant's railroad extends from the city of Pawhuska in an almost easterly direction, parallel with which and about 100 feet south thereof, is the improved public highway, called the Pershing road. About one mile east of the city limits is a north and south road, crossing said Pershing road and said railroad track, the latter known as the Nelogany crossing. At said Nelogany crossing the track is elevated or graded several feet above the public road. The railroad east of said crossing is slightly curved and is on the upgrade for about one-half mile east of said crossing, from which point, and for about one-half mile farther east, there is a declination in the elevation of the track; that is, a train coming from the east to Pawhuska ascends the grade to the top of the elevation, about one-half mile east of the Nelogany crossing, and from that point descends to and by said crossing into the city of Pawhuska. The deceased, a boy of 15, on August 15, 1923, was working for, and residing at the home of, a friend in Pawhuska, and in the very early morning of August 16th arose and started to a pasture east of the city to get some work mules. Between three and four o'clock on that day, an acquaintance of the boy was driving an automobile to the east on said Pershing road from the city. Although the evidence tends to show that this boy intended so to go east of the city to procure said mules, this person in the car, going from Pawhuska to the east, met the boy coming from the east toward Pawhuska on foot, and talked with him at a point on the Pershing road nearly a mile west of said Nelogany crossing, which point must have been on the Pershing road just outside the city limits. Soon thereafter, defendant's freight train in charge of defendant Lawson, engineer, came from the east toward the city. About one-half mile west of Nelogany crossing, and about one or two blocks north of the railroad track, were three small houses. In one of these homes, a child had died and the good neighbor ladies were keeping watch during the night of August 15th, including the early morning of August 16th. The windows and doors were open. One witness for plaintiff testified that she heard this train--

"just lugging or puffing up the grade. It pulled there something like 15 or 20 minutes coming up the grade, and when it got to the top of the grade, it threw the brakes off down hill, and it never made a bit of noise until we supposed it had run into the boy and gave that shrill whistle. Q. Could you tell from what you heard and your surroundings about where the engine was when it gave the shrill whistle you are talking about? A. Well, it was right on east, just past the Nelogany crossing, coming this way."

¶2 The testimony of this witness and another lady is that the train stopped soon after the engine passed the Nelogany crossing, backed up, and in about ten minutes proceeded westward into the city; that the engine bore a headlight, but that it was not very bright. After the train had backed up, one witness clearly saw an intervening telegraph pole just north of the track by means of the headlight. Another witness in the same house heard the train coasting down the grade to the crossing. These witnesses were about a block north of the crack, which is about 100 feet north of the Pershing road. Soon after the train had gone forward to the city, they heard and saw the ambulance coming from the city along the Pershing road going co and returning from the Nelogany crossing. The ambulance driver found one lower limb of the boy severed and lying between the rails of defendant's track on the Nelogany crossing, where the traveled portion of the highway crosses the track north and south, and found the boy, still alive, lying between the rails at about the west line of the highway on the Nelogany crossing. He expired soon after they carried him to the hospital in the city. The record does not disclose any other material facts or circumstances. The court sustained the demurrer of the defendants thereto, directed verdict for defendants, and rendered judgment accordingly. Plaintiffs appeal.

¶3 The negligence alleged is that there was a steep grade at the crossing where the boy was killed; that there was no warning device at the crossing; that no whistle was sounded or bell rung; that the headlight on the engine was of less power than required by statute, and that the engineer failed to keep a lookout. While the Nelogany crossing was higher than the level of the road, running north and south, there is no evidence that there were any extra dangers. There is no evidence of hills, trees, or other obstructions, but, on the contrary, the train and track were in plain view of any one approaching said crossing. There was no negligence in failure of the railroad to maintain a warning device at said crossing as an extra precaution, because this crossing was in the country about one mile east of the city limits, and there is nothing to bring this crossing within the rule requiring such extra precaution. R. R. Co. v. Ives, 144 U.S. 408, 36 L. Ed. 485, 12 S. Ct. 679. There is no evidence that th engineer failed to keep a lookout. While one witness stated, as a conclusion, that the headlight was not very good, it was sufficient by which she could discern said intervening telegraph pole when she was about one-half mile away. There is thus no evidence to support such allegation of negligence as to the headlight. There is competent evidence to go to the jury that the bell was not rung before the train reached the crossing, and some evidence that the whistle was not blown, although one witness testified, so as aforesaid, that a shrill whistle was blown east of the crossing.