Opinion
No. 29382.
June 11, 1940.
(Syllabus.)
1. RAILROADS — Nonliability for accidental death of person on track absent proof of negligence.
A railroad company will not be liable for an accidental death alleged to have been caused by negligence of its employees in the operation of a train, where there is a total lack of positive evidence of negligence, or of facts and circumstances from which such negligence can be inferred.
2. SAME — Insufficiency of evidence of negligence or breach of duty.
Where, in an action for damages for wrongful death, the plaintiff's evidence entirely fails to show negligence or a breach of duty on part of defendant, judgment should be for defendant.
Appeal from District Court, Wagoner County; E.A. Summers, Judge.
Action by Nora Gordon, administratrix of the estate of Oscar Gordon, deceased, against Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, a bankrupt debtor, for the death of plaintiff's husband resulting when struck by defendant's train. From a judgment for the plaintiff, defendants appeal. Reversed and remanded, with directions.
Thomas B. Pryor and W.L. Curtis, both of Fort Smith, Ark., for plaintiff in error.
Bailey E. Bell, of Tulsa, for defendant in error.
This case is brought by the same party and arose out of the same accident as the case of Missouri Pacific Railroad Co. v. Gordon, Adm'x, 186 Okla. 424, 98 P.2d 39.
We have here the same fact situation existing and the same legal questions involved as in the case above cited. Therefore, we are of the view the case of Missouri Pacific Railroad Co. v. Gordon, supra, is controlling here and requires a reversal.
The judgment of the trial court is therefore reversed and remanded, with directions for the trial court to vacate the judgment rendered, and dismiss the action.
OSBORN, HURST, DAVISON, and DANNER, JJ., concur.