MOORE et al. v. KURN et al., 108 F.2d 906

LEWIS, Circuit Judge. Sarah A. Moore sued the trustees of the St. Louis-San Francisco Railway Company as mother and next friend of Elbert Moore and Ruth Helen Moore, minors for the death of their father, J. J. Moore. Sarah A. Moore was divorced from J. J. Moore. The mother had been awarded the custody of the girl and the father of the boy. The father was obliged to and did support them. Any objection to the sufficiency of the parties plaintiff was waived and is not raised on this appeal. J. J. Moore was fatally injured June 29, 1937, at about 6:30 p. m. It was stipulated that deceased was totally deaf.

The deceased dropped his hoe in a field where he had been working, followed a path down to the track, and walked south down the road bed. He was struck from the rear upon a curve a short distance from where he went onto the road bed by an engine drawing six cars "and a caboose. Three or four gondola cars were loaded. The track had been undergoing repairs and the train was proceeding slowly, 15 or 20 miles per hour. Witnesses who were nearby testified that the engineer whistled repeatedly after he got within 1200 or 1400 feet of the deceased. Deceased apparently was unaware of the approaching train.

There was a .6 of 1% grade down to the south. A former locomotive engineer estimated that a train such as that involved here could be stopped in 200 to 225 feet moving at 20 miles per hour. This evidence was not contradicted. At the close of plaintiff’s evidence when the court announced he would sustain a demurrer to plaintiff’s evidence, plaintiff’s counsel obtained permission to reopen the case. The engineer who was operating the train was put on the stand.

He testified he was in the engineer’s seat watching the track; that he first saw the deceased 900 feet away “walking down the track apparently on the outside of the track”; that he was to the left of the left hand rail; and that the beams of the engine extended to about the edge of the ties. “Q. What did you do when you first saw him? A. I sounded the whistle for the curve and didn’t think anything about it. We see them every day. I sounded the road crossing whistle for that curve. “Q. At that point you were how far back from the curve? A. I couldn’t say.

It was just a second or two until I went around the curve to the right and I seen he was close to the track. “Q. Now just a moment. When you got around into the opening of the curve to where you could see him you then saw he was not in the clear of the train ? A. Yes, sir. “Q. What did you do then? A. When I seen he wasn’t in the clear I set my brakes in emergency and sounded the stock alarm with the whistle. “Q. Which did you do first? A. I set my brakes, just as soon as I seen he wasn’t in the clear I set my brakes. “Q. Did you set your brakes before you sounded the stock alarm? A.

It was all done so quick I couldn’t say. The first thing I thought of when I saw him was setting my brakes. “Q. Up to that time he had never looked around had he? A. No, sir.” The engineer testified that he was familiar with the track and the width of the road bed on each side of the rails at that point. “Q. How come you to put on your brakes? A. I didn’t think the man heard the engine. “Q. Did you think he was in danger when you first started putting your brakes on? Was it apparent to you that the man was in danger? A. Yes, sir. “Q.

I believe you said you couldn’t say which you did first give those short whistles or set the brakes ? A. Well, the first thing I guess was setting the brakes. “Q. Then your testimony is at the point where you started setting your brakes you recognized the man was in danger? A. Yes, sir. “Q. You gave those short sharp blasts also after you had discovered he was in danger? A. Yes, sir, about the same time I set the brakes. “Q. Do you say at the time you began to give those short sharp blasts you recognized the -man was in danger ? “The Court: He has said that three or four times. “A. Yes, sir. “Q.

What can you do towards stopping a train besides setting the brakes ? A. The only thing is shut off your throttle and get the steam out of the cylinders as quick as possible. “Q. What about giving it the sand? A. Well that helps, when the brakes is set in emergency that helps, sliding your drivers. “Q. Does that help you in stopping? A. Yes, sir. “Q. How long did you wait before you gave it the sand? A. I couldn’t.say. It was all done so quick I couldn’t say how long. “Q. You didn’t get the sand out until after you had struck? A. No, I don’t believe I got the sand turned on until after I struck him.

It was done so quick. I done everything. “Q. That is all. You just answer the questions. When did you stop giving the short sharp blasts ? A. I sounded the whistle when he was struck. “Q. Did you then quit? A. I don’t remember now, I guess I was by him before it quit. “Q. You know when you struck him? A. Well, the fireman hollered at me and told me. “Q. Then you stopped blowing the whistle? A. Yes, sir.” Other witnesses besides the engineer testified that the sand was not applied until the engine was beyond the point where deceased was struck. Deceased was thrown to the left of the track.

The caboose was 10 or 12 feet from deceased when the train stopped. A number of photographs of the scene of the accident are referred to in the record. They are taken from a height equal to that of the engineer in the locomotive. On the back of each is noted the number of rails north of the point of collision each was taken. A rail is 33 feet long. A lady stands in each picture at the point deceased was struck. She is plainly visible in photograph No. 5 taken from the north end of rail 38, 1254 feet from the point where deceased was struck.

Photograph No. 6 was taken from the north end of rail 36, 1188 feet; photograph No. 7, 1122 feet; photograph No. 8, 858 feet. As stated, the engineer testified he saw deceased 900 feet away. It appears that the road bed extends only a foot or two beyond the ties and then slopes off. A person walking on the road bed to the left of the left hand rail would be in danger from a passing train. It would be apparent 900 feet away that deceased was on the road bed, as the engineer testified. At the close of plaintiff’s case the trial judge sustained a demurrer to the evidence in favor of defendant.

Plaintiff has appealed, and the question presented is the sufficiency of the evidence to go to a jury under Oklahoma law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. The Supreme Court of that state has often stated and applied the rules in cases arising from injuries to trespassers on railroad tracks. “To constitute actionable negligence, where the wrong is not willful and intentional, three essential elements are necessary:

(1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff resulting from such failure.” The last clear chance rule has been applied.only in cases where defendant has discovered plaintiff’s peril. “To establish liability under the so-called humanitarian doctrine, or doctrine of the last clear chance, it is necessary to prove:

(1) That the person was in a place of danger; (2) that he was seen in such place of danger by the owner or an agent or servant of the owner; and (3) a failure thereafter to use ordinary care to avert injury.” Atchison, T. & S. F. R. Co. v. Phillips, 158 Okl. 141, 12 P.2d 908, 909, and cases cited. See, also, Missouri Pac. R. Co. v. Gordon, Okl.Sup., 98 P.2d 39, decided September 19, 1939; Atchison, T. & S. F. Ry. Co. v. Howard, Okl.Sup., 98 P.2d 914, decided September 19, 1939.

Defendant railway did not owe deceased, a trespasser, the duty to discover him upon its road bed, but after the engineer observed him in a perilous position it was his duty to exercise ordinary care to avoid injuring him. Lusk v. Haley, 75 Okl. 206, 181 P. 727; Chicago, R. I. & P. R. Co. v. Pedigo, 123 Okl. 213, 252 P. 1095; Chicago, R. I. & P. R. Co. v. Owens, 78 Okl. 114, 189 P. 171; and cases cited supra. Negligence may be shown by circumstantial evidence and the inferences reasonably deducible therefrom. Missouri Pac. R. R. Co. v. Gordon, supra; A. T. & S. F. R. Co. v. Howard, supra; A. T. & S. F. Ry. Co. v.

Phillips, supra. Deceased was observed upon the Toad bed by the engineer at least 900 feet from the point where he was struck. There was a duty upon the engineer from that instant to use ordinary care not to injure him. The train was traveling 15 to 20 miles ¡per hour. There is uncontradicted evidence that the train could have been brought to a stop in 200 to 225 feet at 20 miles per hour. Deceased was totally deaf. The engineer whistled repeatedly, but did not attempt to stop the train until practically the instant deceased was struck.

The fact that the sand did not reach the track until the engine was beyond deceased shows that. Deceased did nothing to indicate he was aware of the approaching train and intended to step aside out of danger. The fatal accident could have been avoided by stopping the slowly moving train. In our opinion the evidence presented a jury question under Oklahoma law upon the issue whether defendant’s engineer used ordinary care to avoid striking deceased after observing him in a perilous position upon the road bed, and the court below erred in sustaining defendant’s demurrer at the close of plaintiff’s case.

Reversed and remanded.