After a carefull examination of the record and the briefs and arguments of counsel upon rehearing the court is convinced that the opinion by Mr. Commissioner Collier formerly handed down is correct and should be approved.
In their petition for rehearing counsel for defendant in error insist that they did not rely upon the violation of a city ordinance as an element of negligence. In this we think counsel is mistaken. The petition of plaintiff sets up a city ordinance which requires the railway company to keep a flagman constantly on duty at the Sixth street crossing, and alleges:
"Said defendants had a flagman at said crossing as provided for in the city ordinance above set out, but said flagman was not at his post of duty, and was not in sight of plaintiff, and he negligently and carelessly failed to give plaintiff any signal either to stop or proceed, or any warning or signal of the approach of said engine or cars, or of the danger of the horse becoming frightened, that might he occasioned by the sudden bumping together of said engine and cars as aforesaid, by reason whereof plaintiff was unaware of the approach of said locomotive and string of cars set out."
And the petition concludes as follows:
"That solely by reason of the defendant's negligence and the evidence of said flagman in being absent from his post of duty, and in failing to signal to plaintiff of the approaching danger, and failing to signal him to stop, and by not remaining constantly on duty as required by the ordinance of the city of Lawton, as above set out, and without any fault or negligence on the part of plaintiff, said violent and sudden bumping and kicking of the cars and locomotive as aforesaid frightened and scared the plaintiff's horse so that said horse instantly and violently lunged and whirled around, overthrowing plaintiff's buggy and violently threw plaintiff, his wife and little son out upon the ground with such violence and force as to fracture plaintiff's right arm, and otherwise greatly bruised, wounded and injured plaintiff in his body." *Page 186
From these excerpts it seems quite clear to us at least one of the grounds of negligence relied upon by plaintiff consisted of a violation of the city ordinance in question.
The commission formerly correctly held that there was no causal conection shown between the failure of the company to comply with the ordinance and the injury received by the plaintiff. The commission also correctly held that the plaintiff had no cause of action against the railway company for the reason that it did not appear that the acts of its servants which caused the noise, which frightened the animal, were unnecessarily made under such circumstances as to constitute a lack of ordinary care; or that such noise was recklessly and wantonly made or done to frighten the horse.
It is true that there was some testimony to the effect that the noise made by the coupling of the cars was louder than usual, or louder than ordinary, but evidence of this sort amounted to no more than the mere conclusion of nonexpert witnesses who admittedly had never engaged in railroad work of any kind, and who admittedly had no knowledge what ever of the effect or force necessary to the coupling of cars or of the volume of noise necessary for the proper performance of such work under different circumstances and conditions.
This we think is not sufficient to raise an issue of fact for the jury as against the positive testimony of the experienced train crew to the effect that the switching wag being done in the ordinary and usual manner, and that the noise being made was only such as is ordinarily produced in the proper performance of this class of work.
Discussing a somewhat similar situation this court, in St. L. S. F. Ry. Co. v. Gosnell, 23 Okla. 588, 101 P. 1126, 22 L. R. A. (N. S.) 892, says:
"In arriving at such conclusion, and that the jar caused by the stepping of the train was not ipso facto negligence, and hence the proof insufficient to take the question of negligence to the jury, we are not unmindful of the testimony of the passengers as to the character of the stop, but the same has no weight with us for the reason that the probative force thereof is nil, are mere expressions of opinion, and should not be considered in determining the question of the negligence of the defendant. As to such expressions we can say as was said of similar expressions of witnesses in Guffey v. Railway Co., 53 Mo. App. 466, where the court said: 'We do not think these expressions of the witnesses are of any value whatever, or state as much as a scintilla of evidence.' In Young v. Mo. Pac. Ry. Co. [(Mo. App.) 84 S.W. 175], supra, the court said: 'It is true the plaintiff and his three witnesses testified their opinion to the effect that the "train made a heave forward just like lightning," that "it was an awful hard jerk," and that "the jerk was the most severe I have ever experienced." Of course, the manifestly hyperbolical expression of opinion that "the train heaved forward just like lightning" as evidence cannot be given the weight of a feather. The other expressions of the witnesses prove nothing. The jerks or lurch may have been "awful hard," or the "severest" the witness had ever experienced, and yet not that extraordinary or unusual jerk or lurch attributable to unskillful handling of the engine, or something of the kind.* * *' "
For the reasons stated, the order granting a rehearing is set aside. The second petition for rehearing is denied and the former opinion of the Supreme Court Commission approved.
All the Justices concur.