Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
Appellees instituted separate actions for the wrongful death of their husbands by appellant Railway Company in the District Court of Oklahoma County, Oklahoma. The actions were removed to the United States District Court for the Eastern District of Oklahoma where they were tried to a jury in a consolidated action resulting in each case in a verdict and judgment for the plaintiff, from which these appeals were taken.
There is no dispute in the evidence and the facts may be summarized as follows. The tracks in appellant's railroad yards where these accidents occurred run in a northerly and southerly direction. At about 3:30 A.M. on the cold and sleeting morning of March 6, 1948, H. F. Hendricks, a brakeman for the appelllant Railway Company, discovered deceased Grissom lying in the railroad yards at Okmulgee, Oklahoma. He was lying between the easterly team track and the track next to it on the west, and very close to the rails of the team track. He was lying in such a position that had he extended his arms or legs they would have been cut off by passing cars. Grisson stated that he had been drinking; that he was not hurt but that he could not get up and that his back was killing him and asked for someone to help him. There were no other brakemen or railroad employees about at the time. Hendricks at the time was engaged in checking a string of cars on the team track which were about to be moved by the train on which Hendricks was working. Hendricks left Grissom where he found him and went north about 125 to 150 yards to a house where he saw a light. He found it occupied by a colored man, Simons, and his wife. He told Simons about Grissom - that he was either drunk or hurt and that something had to be done right away as he, Hendricks, had to get back to his train. Upon inquiry he was informed that Simons did not have a telephone but that there was one across the street. He did not, however, use the telephone. He asked Simons and his wife if they would do something about getting someone down there; he told them that the police should be notified or that someone should go down there to help Grissom; that he had to leave immediately and that "This man was going to get killed. He was in a position to be killed." Hendricks testified that he did not ask Simons to go to Grissom's aid but Mrs. Simons testified that he did ask Simons to go to Grissom's assistance. Hendricks testified further that thereafter Simons came over to where Grissom was lying; that when he, Hendricks, returned to where Grissom was, another brakeman, Cooper, came to the spot; that he did not ask Cooper to see that nothing happened to Grissom; that he did not put flares around Grissom; and that he and Cooper left at the same time. He testified that Cooper left on a train which was about 100 feet south of where Grissom was lying. The cars which were being moved out to be connected to the train on which Hendricks was working were on the team track next to which Grissom was lying. While these cars were being moved out Hendricks stood by Grissom "to hold him down, if necessary, to keep from having his hands or legs cut off by the passing cars." After Hendricks' train had completed its switching operations and was ready to leave, Hendricks returned to Grissom and found Simons with him and asked Simons if he would look after Grissom and was told that he would. At that time Simons was carrying a lighted lantern. Hendricks stated that he had to hurry away then, since his train was already moving. The evidence further discloses that there was a telephone on a pole about 20 feet from the place where Grissom was lying over which Hendricks could have called the operator by merely removing the receiver from the hook but that Hendricks did not attempt to use the telephone to notify any one of Grissom's condition. It is also without dispute that Grissom could have been moved from the right-of-way by moving him approximately 20 feet east from where he was found. An engineer on another train, going out on the passing track, saw Simons and Grissom. One of them was lying between the track on which his train was going and on the team track, and the other man was standing on the other side of him. As his train was going north, he observed the yard engine backing about 15 cars southward on the team track. Apparently it was the rear of this cut of cars that killed the two decedents. Simons was about 5 feet 2 inches in height and weighed approximately 165 pounds, while Grissom was about 6 feet 2 inches and weighed about 197 pounds.
In the Simons case, special interrogatories were submitted to the jury. The answers to these interrogatories were substantially as follows: That Simons was an invitee in the railroad yards; that the employees of the Railway Company knew of the position of Simons and knew that he was undertaking to remove Grissom from the railroad yards; that Simons' position was a dangerous one in view of all the circumstances; that Hendricks and his cobrakeman were negligent in leaving Simons in such a position; that such negligence was the proximate cause of Simons' death; and that Grissom was intoxicated when found by the Railway Company's employees. The following interrogatory was submitted and answered as indicated below.
"II (b) Was Simons negligent in attempting to remove Grissom from defendant's railroad yards considering Grissom's condition and the surrounding circumstances, or from any other circumstances without regard to Grissom's condition, if in fact you find him to have been intoxicated. Answer yes or no. No."
In the Grissom case, special interrogatories were likewise submitted to the jury. The answers to these interrogatories were substantially as follows: That Hendricks knew of the position of Grissom in the railroad yards; that Grissom's position was a dangerous one in view of all the circumstances; that Hendricks and his cobrakeman were negligent in leaving Grissom in such location and position; that such negligence was the proximate cause of Grissom's death; that Grissom was intoxicated when found by Hendricks; that Grissom was negligent in being in the position he was found by Hendricks. Specifically the court, in the Grissom case, submitted the following interrogatory.
"II (c) Did such negligence contribute to and proximately cause Grissom's Death?"
The answer to this interrogatory was "no."
In this case the appellant Railway Company urges that the verdict and judgment are in conflict with the evidence in that the evidence fails to show that the appellant was guilty of any act of negligence which in any manner contributed to the death of Simons, and that if Hendricks, its employee, was guilty of negligence that such negligence was the proximate cause of the accident and that the court erred in submitting to the jury Interrogatory Number II(b) in the form in which it was submitted.
The statement in appellant's brief, supported not only by the authorities cited therein but by numerous other authorities, that "Courts have consistently held that before a recovery can be had in actions such as these there must be an injury due to negligence, which negligence must be the proximate cause of the injury," correctly states the law. Since all agree that this is the law, no authorities need be cited in support thereof.
Simons was an invitee. It is clear that Hendricks, an employee of appellant, in the course of his employment invited him into appellant's yards and asked him to look after Grissom and remove him or see that he was removed from the yards.The acts and conduct of Hendricks in the course of such employment were the acts and conduct of appellant. His actionable negligence, if any, was attributable to and binding upon it.
The law is well settled in Oklahoma that while the owner or occupant of property is not an insurer of the safety of an invitee thereon, he owes him a greater duty than merely not to injure him wantonly or willfully. He owes him the duty to exercise all reasonable and ordinary care not to injure him. This duty is an active, affirmative, or ...