From the conclusion reached by my Associates in the foregoing case I am constrained to dissent.
An ordinance of Oklahoma City (No. 281) relating to the management of the cars of the street railway company on the sounding of a fire alarm provides:
"* * * The cars of such railway company shall be stopped after the sounding of a fire alarm and upon the approach of fire engines, hose cart or other fire apparatus, which stoppage shall be made when such apparatus is within a distance of 300 feet of such cars, and shall remain standing until the same have passed."
Had the company observed this ordinance, and had the car stopped on the sounding of the fire alarm, the injuries complained of *Page 352 would not have happened. The violation of a valid ordinance is usually held to be prima facie evidence of negligence. The car did not stop, but, as averred by the petition, continued its course east, along Main street, until it came into Broadway and into the direct line of travel of the fire apparatus. Nor does the petition leave room for conjecture nor for the operation of the rule that one is held to be liable for the result of his negligence only when the same could or should have been foreseen, for the petition specifically avers that, when the said Kessler and the wagon bearing the fire apparatus were approaching the point where this injury occurred and at a place less than 300 feet south of the corner, they "were in plain view of and were seen and heard by the motorman and conductor of said car, but that said motorman and conductor, in violation of their duty and in violation of the said ordinance No. 281, failed and refused to stop said car at said point." From which it will be seen that the operatives of this car and the company acting by and through them were required to exercise no foresight whatsoever in order to be held chargeable with the liability here sought to be enforced. These rapidly moving engines of destruction, it is averred were in sight of the motorman and conductor; that they could and did see them; and, independent of any ordinance, failure to stop, under the facts shown, was manifestly negligence. The operatives of the car might not have known with absolute certainty that there would be passengers called into the street by its continued travel, but they knew they were doing the thing which would call them there if any desired passage, and they certainly did know that by their action some accident (if not this, some other) was likely to occur. This is all that the law requires to fix liability upon them for injuries which did occur. Nor is the gross disregard of ordinary care involved in the foregoing acts the only thing with which they are made chargeable herein. The car not only did not stop when the alarm was sounded and when the the fire apparatus came into the vision of the employees, but, in addition thereto, it failed to stop after proceeding *Page 353 on its way to a point where the deceased and injured parties stood, which was in the direct line of travel of the fire chief's running horse. At this place it is alleged in the petition it was the duty of the said company to stop its cars, and that this was the usual and customary point for the cars to stop, and it is further alleged that these parties were passengers on the said railway and held transfers and were at the proper place to take and board the cars to continue their journey. Nor is this all. It is further alleged that this is the only car which they could take under the terms of their transfers. So that the railway company, in addition to deliberately driving its car into a place where it was seen some accident was likely to happen, violated a positive contract which it had made with these people when it received their fare for carriage. It required them under its contract to take this specific car and none other, and then failed to stop the car at the proper place and time to enable them to secure the benefit of this contract. It is alleged in the petition and manifest that if the car had stopped in response to the requirements of the ordinance, or if it had stopped when the operatives saw the fire apparatus approaching, or if it had stopped in response to the contract into which the company had entered, the injuries here complained of would not have happened.
All the foregoing acts may be termed, so far as the deceased and the plaintiffs herein are concerned, to have been as to them acts in the nature of omission of due care for their welfare rather than commission; but it is further averred that, by the car proceeding on its way after the alarm or view of the fire wagons was had, the plaintiffs and the deceased were lured into the street and caused to believe that by remaining in the street they would be able to board the car when it reached the point where they stood; that when the car did not stop so that they could board it, they were left standing there exposed to the danger which overwhelmed them. These facts, when taken together, in my judgment render *Page 354 the company liable for the injuries for which relief is here prayed. The petition avers that:
"Said Mark H. Kessler saw these plaintiffs and saw said deceased, Daniel L. Stephens, in ample time before he reached the point where plaintiffs and said Daniel L. Stephens were located, and when he was about 80 feet from them, by the exercise of proper care to have checked the rate of speed at which he was driving and to have stopped said horse, and thereby to have protected plaintiffs and said Daniel L. Stephens from the danger which they were in, which said danger was imminent and beyond the power of said plaintiffs and of said Daniel L. Stephens to avoid, but that said Mark H. Kessler, wholly disregarding their rights and wholly ignoring the danger in which these plaintiffs and the said Daniel L. Stephens were placed, did, then and there, in a manner grossly negligent of the rights and grossly unmindful of the lives and safety of plaintiffs and of said Daniel L. Stephens, continue to urge his said horse northward at full speed, and did then and there carelessly, negligently, heartlessly, cruelly, and in a cold-blooded and murderous manner urge said horse and the buggy drawn by it against the person of said Daniel L. Stephens, thereby wounding and injuring the said Daniel L. Stephens so that within a few hours he died."
The foregoing allegations in my judgment do not bring this case within the rule laid down in the case of Watson v. Ky. Ind. Bridge Co., 137 Ky. 619, 126 S.W. 146, 129 S.W. 341, from the Kentucky Court of Appeals. The general proposition there stated will, I believe, not be denied. The act there dealt with was one of wanton criminality for the purpose of committing a crime. In the case at bar there is no averment of fact leading us to believe that Kessler intended and willingly killed or injured these people. He had no bludgeon, firearm, or knife, nor other such deadly weapon, nor is it shown that in his mind he was bent upon destroying these people. He was engaged in depicting a scene which occurs every day in the crowded streets of every big city of this nation and using the ordinary means used in carrying it out. If, instead of the injuries occurring as above set out, some enemy of these people had, with a deadly weapon, assaulted them and inflicted the injuries alleged, then the rule of the case from the *Page 355 Kentucky Court of Appeals would be applicable. But it is not applicable here because of this distinction, and also it seems to me for another reason. These people were passengers on the street car company's line. They were in every particular acting within their contractural rights. It was the affirmative duty of the street car company to use every reasonable precaution that it could to guard them from danger, either of negligence or criminality. The averments show that the company's employees saw Kessler and the fire apparatus approaching to the point where these people should board the car, and if, seeing this, it did not stop, in my judgment it would be liable for the injuries which happened even if Kessler had maliciously and wantonly run them down with his horse; this for the reason that the parties were passengers, and the company saw and could have prevented the injury. But the averments of this petition do not make of Kessler's act a crime. Among the synonyms for "murderous," Webster's New International Dictionary mentions "savage," and "cruel"; and "murderous," as defined in the Century Dictionary and Encyclop ædia, means "very brutal; cruel or destructive"; and "murderous," "in a murderous or bloody manner." All of these epithets could be applied to Kessler's acts and yet not charge them as criminal.
Section 5655 of the Compiled Laws of Oklahoma 1909, provides that:
"In the construction of any pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties."
Taking the facts as set forth in the pleadings before us and giving them the construction required by the foregoing statute, in my judgment substantial justice requires that we should overrule the demurrer and send the case to the district court for a trial of the issues of fact by a jury. *Page 356