BARNETT v. ST. LOUIS-S. F. RY. CO.

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BARNETT v. ST. LOUIS-S. F. RY. CO.
1926 OK 898
282 P. 120
140 Okla. 19
Case Number: 17187
Decided: 11/16/1926
Supreme Court of Oklahoma

BARNETT
v.
ST. LOUIS-S. F. RY. CO. et al.

Syllabus

¶0 1. Railroads--Injuries to Persons on Track--Liability--Requisite Allegations. The plaintiff must allege a right owing to him by the defendant, its unlawful breach by the latter, and consequential damages, to state a cause of action in favor of the plaintiff and against the defendant.
2. Pleading--Variance--Nonconformity of Evidence. Proof by the plaintiff of another and different right, and its wrongful breach by the defendant, is not admissible over the objection of the defendant, in the absence of an amendment of the pleading by the plaintiff.
3. Railroads--Action for Injuries to Pedestrian on Track--Insufficiency of Evidence. Record examined; held to be sufficient to support the judgment of the court sustaining the defendant's demurrer to the evidence of the plaintiff.

Ledbetter, Stuart, Bell & Ledbetter, for plaintiff in error.
E. T. Miller, Stuart, Sharp & Cruce, and Ben Franklin, for defendants in error.

STEPHENSON, C.

¶1 The plaintiff alleged for his cause of action against the defendants:

(a) That the plaintiff was walking along a pathway close to the track of the defendant which was used by members of the public as a passageway over the premises of the defendant with the knowledge and acquiescence of the latter.

(b) That the plaintiff traveled along the pathway on the premises of the defendant to a point where it intersected a dirt road which crossed the railway tracks of the defendant.

(c) That while the plaintiff was on the crossing the defendant wrongfully backed one of its trains without warning over the crossing against the plaintiff, which resulted in serious personal injury to the plaintiff.

¶2 Issues were joined on the allegations of plaintiff's petition; the trial of the cause resulted in the court sustaining the defendants' demurrer to the plaintiff's evidence. The plaintiff has perfected his appeal to this court, and among the errors assigned for reversal, is the action of the court in sustaining the demurrer to the evidence. It is the obligation of the plaintiff to plead the right owing by the defendant, its wrongful breach by the latter, and consequential damages. A duty devolves upon the plaintiff to plead the elements which may constitute the right owing to the plaintiff by the defendant and the nature of the wrong by the defendant which operated to breach the right. The defendant is entitled to be informed of the nature of the right claimed by the plaintiff, so that he may be prepared to meet the issues with his proof in the trial of the cause. The plaintiff will be confined to his material allegations in the introduction of his proof. The plaintiff will not be permitted to allege one right, its breach, and prove another right and its breach to support a recovery against the defendant, unless he amends his petition accordingly. Reid et al. v. Runyan, 100 Okla. 134, 226 P. 873; Winans v. Hare, 46 Okla. 741, 148 P. 1052; Chambers v. Van Wagner, 32 Okla. 774, 123 P. 1117; El Reno Wholesale Grocery Co. v. Keen, 93 Okla. 198, 220 P. 653. The plaintiff's pleadings placed himself in the status of a member of the public, entitled to travel on the footway over the right of way and premises of the defendant, because the defendant had permitted the public to use the footway as a public way of travel for a long period of time prior to the date of the accident. The allegation of the granting of the right and its use by the members of the public, imposed the duty on the defendant to exercise ordinary care to ascertain if a member of the public was traveling along the pathway in a place of danger before moving the train of cars over the passage way. If a member of the public was observed to be using the passage way in a place of danger, it would be the duty of the defendant to use reasonable care to avoid injury to such person. The allegations contained in plaintiff's petition entitled him to the benefit of the rules of law applicable to a member of the public injured, wrongfully, while using a public passage way over the premises of the defendant with the knowledge and consent of the latter.