Plаintiff brought her action for $7500 as damages for defendant killing her husband in the State of Oklahoma. Defendant demurred to the petition on the ground that it failed to stаte facts sufficient to constitute a cause of action. The demurrer was sustained by the trial court and plaintiff thereupon brought the case herе by writ of error.
The petition alleges that on. and prior to'the 26th of October, 1912, defendant operated its road through the town of Dawson in the State оf Oklahoma. That plaintiff is the widow of Frank Baker who, on that day, at about dark, while intoxicated, had fallen on the defendant’s track at a placе habitually used as a
That defendant’s servants, negligently and carelessly, while its locomotive and train were going at a speed of twenty-five miles an .hour, ran over her said husband and'killed him. That defendant knowing of the habitual use of such place by the public, owed to deceаsed and the public a duty to keep a lookout to discover anyone and avoid injuring him if it could be done by ordinary care. That the locomotivе as it approached the crossing carried a headlight which lighted the track, for a distance of 2000 feet, sufficiently for those in charge thereof to have seen Baker in his position upon the track, and to have known that he was oblivious to danger, in time, by the use of ordinary care, with the means at hand, to have stopped the train before reaching Baker. That because of the negligent failure of defendant’s servants to discharge their duty tо keep a lookout and because they negligently failed to see Baker upon the track in the perilous position stated in time to have stopped the train, they ran upon and killed him.
The petition then charged that at the time of Baker’s death there was a statute of Oklahoma (set out in the petition) giving an action for the death of a person to the personal representative of such person where the death was cаused by the wrongful act of another, in all cases where the deceased may have maintained an action had he lived. That such statute provided that where the deceased party at time of his death was a non-resident of Oklahoma, the action may be brought by the widow. The petition then charges
The first objection stated to the petition is that it does not allege that defendant’s servants in charge of the engine “saw, or by the exercise of ordinary care might have seen, Baker.” It will be observed that the petition states facts making it the duty of the servants to be on the lookout; and that there was sufficient light (we quote) “to have enabled those in charge of the engine to have seen said Baker ... in time to have averted striking him, by the use of reasonable care-on their part, and by the use of the means at their command could have stopped said train before reaching Baker.” But “that because of the negligent failure of thosе in charge of said engine to discharge their duties and because they negligently failed to see said Baker, . . . in time . . ., said Baker was struck and killed as herein set out.”
The allegations might have been more direct, but we think it is charged that defendant’s servants could have seen Baker had they been on the lookout and that they negligently failed to see him. The case is not like that stated by Woodson, J., in Nivert v. Ry. Co.,
Defendant’s argument would indicate that its servants, to make them culpable, should have reasonably expected that a drunken man would be lying on the track. That is not necessary. If the place is habitually used by the рublic, with the tacit consent of the railroad, as a place of crossing, or for pedestrians to walk along the track, it is sufficient. It may be that
A second objection is that there is nо allegation that the humanitarian rule exists in Oklahoma, and the action being based on a common-law right, known as the humanitarian rule; and as Oklahoma was never subject to the common law of England, defendant insists it cannot be presumed that the common law is in force there. We grant this; but in the absence of an allegation of the foreign law, our own law will determine the rights of the parties. [Flato v. Mulhall,
In so holding, we have not overlooked a suggestion.tkat while the petition might have been held to state a cause of action, if it had not been demurred to and the parties had gone to trial; yеt since objection was made by demurrer, we ought to say that no cause of action was stated. In support of this we are cited to Lee v. Railrоad,
There is much learning in the opinions of the courts, whether, in the absence of a showing of the law of the foreign State, the presumption should or should not be that the common law was in force in such State; or that the law of such foreign state was the same as that of the State where the remedy is sought, or of applying the law of the latter State without indulging in any presumption at all. [Cuba R. R. Co. v. Crosby,
It follows that the judgment should be reversed and the cause remanded.