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1933 OK 348
25 P.2d 647
165 Okla. 219
Case Number: 21700
Decided: 05/31/1933
Supreme Court of Oklahoma



¶0 1. Negligence--Negligence not Presumed From Injury.
In this state, the mere fact that an injury occurs carries with it no presumption of negligence.
2. Same--Burden of Proof Upon Plaintiff.
The burden is upon the plaintiff, in an action to recover damages for an injury caused by alleged negligence, to show the existence of the negligence, and that the negligence was the proximate cause of the injury.
3. Railroads--Liability for Personal Injuries--Lack of Proof of Negligence.
A railroad company will not be held liable for personal injuries alleged to have been caused by the negligent acts of its employees, where there is no positive evidence of negligence or of facts from which negligence can be reasonably inferred.
4. Same--Action for Injuries to Person Walking Along Path Near Track--Person Held at Best a Mere Licensee.
Under the evidence in this case, the injured person was at best a mere licensee.
5. Same--Extent of Duty Owed Mere Licensee.
In the case of a bare or mere licensee, being one whose presence on the premises is merely tolerated, the company, as in the case of a trespasser, owes no duty except not wantonly or willfully to injure such person after his perilous position is discovered.
6. Same--When Demurrer to Plaintiff's Evidence Should Be Sustained.
A demurrer to plaintiff's evidence in a personal injury action ought to be sustained, unless it is reasonably apparent that the injury sued upon is the causal effect from some wrongful act of the defendant, in violation of a legal duty owing to the plaintiff.
7. Negligence--Existence of Negligence as Question of Law for Court.
The question of negligence or no negligence is one of law for the court, where but one inference can reasonably be drawn from the evidence.
8. Same--Insufficiency of Plaintiff's Evidence.
Where plaintiff fails to show primary negligence or breach of duty on the part of defendant, the judgment should be for defendant.
9. Same--Railroads--Evidence in Action for Injuries to Pedestrian Struck by Train Held not to Support Judgment Against Railroad.
Record examined, and held, that the evidence is speculative, and is not sufficient to support the verdict and the judgment of the trial court.

Appeal from District Court, Pontotoc County; Orel Busby, Judge.

Action by C. B. Sowards against the Missouri-Kansas-Texas Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

M. D. Green, John E. M. Taylor, and Eric Haase, for plaintiff in error.
Reuben M. Roddie and J. O. Whiteside, for defendant in error.


¶1 In the trial court C. B. Sowards sued the Missouri-Kansas-Texas Railroad Company to recover damages resulting to him from the personal injury of his minor son, George Sowards, who was injured by the train of the defendant railroad company, which injury the plaintiff alleges was caused by the negligence of the defendant railroad company. The parties are now referred to as they appeared in the trial court. George Sowards at the time of his injury was past the age of 20 years, but under the age of 21. In the trial court the plaintiff had judgment for loss of the services of his son, and for sums expended for medical treatment.

¶2 The facts and all the evidence in reference to the injury are the same as in case No. 21699 in this court, wherein the Missouri-Kansas-Texas Railroad Company was plaintiff in error and George Sowards, by his mother and next friend, Pearl Sowards, was defendant in error. That case has been this day decided and determined in this court. All of the legal questions are the same, and the opinion in that case No. 21699 is controlling in this case. (165 Okla. 214, 25 P.2d 641.)

¶3 Upon the authority of that opinion, the judgment of the trial court in this cause is reversed and the cause is remanded to that court, with directions to vacate the judgment and to dismiss this action at the cost of the plaintiff.

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