Opinion
No. 22133
Opinion Filed April 26, 1932. Rehearing Denied May 31, 1932.
(Syllabus.)
1. Railroads — Duty to Trespasser on Train Which Does not Carry Passengers.
One who enters and rides upon a car or train which he knows, or by the exercise of reasonable diligence would know, is prohibited from carrying passengers, is a trespasser and not a passenger, and the only duty of the railroad company toward him is to abstain from willfully, maliciously, recklessly, or wantonly injuring him after the defendant is apprised of his being upon said car or train.
2. Same — Railroad Held not Liable for Injuries to Boy Trespasser Caused by Derailment of Freight Car on Which He Rode.
Record examined, and held, that the defendant breached no duty it owed to the minor son of plaintiff. The facts are the same as in case No. 22132, Chicago, Rock Island Pacific Ry. Co. v. Bailey, this day decided by this court ( 157 Okla. 265, 11 P.2d 763) and the opinion in that case is binding and controlling on the questions involved herein.
Appeal from District Court, Oklahoma County; Wyley Jones, Judge.
Action by Ollie Bailey against the Chicago, Rock Island Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
W.R. Bleakmore, W.L. Farmer, John Barry, and Robert E. Lee, for plaintiff in error.
Billups Billups, for defendant in error.
The facts in the instant case are the same as those involved in the case of Chicago, Rock Island Pacific Railway Co. v. Ollie Bailey, 157 Okla. 265, 11 P.2d 763, this day decided by this court. The defendant railway company has appealed to this court to reverse the judgment rendered against it in this case by the trial court in favor of Ollie Bailey, the mother of Wesley Bailey, a minor, who, in her individual capacity, instituted suit against said defendant in the district court of Oklahoma county for damages alleged to have been sustained by her in connection with an injury received by her said minor son on account of a tank car being derailed on which said son was riding. The same contentions which were presented in Chicago, Rock Island Pacific Railway Co. v. Ollie Bailey, supra, are urged in this case, and the same evidence is involved. The cases were tried at the same time, before the same court and jury, and separate verdicts and judgments rendered therein.
We find that there is no evidence that the defendant breached any duty it owed to the plaintiff. We consider it unnecessary to discuss the matters further. The opinion in case No. 22132, supra, is binding and controlling on the question involved herein.
The judgment of the trial court is reversed and cause remanded, with directions to enter judgment on behalf of the defendant.
LESTER, C. J., and RILEY, HEFNER, SWINDALL, and KORNEGAY, JJ., concur. CLARK, V. C. J., and CULLISON and ANDREWS, JJ., absent.
Note. — See under (1) annotation in 32 L. R. A. (N. S.) 572; 22 R. C. L. 924; R. C. L. Perm. Supp. p. 5269; R. C. L. Pocket Part, title Railroads, § 170.