Parties are referred to herein as in the trial court.
Plaintiff, Tally A. Broome, sued defendant, Atchison, Topeka and Santa Fe Railway Company for damages resulting from injuries received when a freight' train on which he was riding as an employee allegedly suddenly slowed down, causing him to fall as he was climbing into the cupola of the caboose fo& the train. Plaintiff was a brakeman employed by defendant railway company. The accident happened in New Mexico and the action was brought in this jurisdiction under the terms of the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq.
Plaintiff’s evidence was to the effect that he boarded the caboose of the train as it pulled out of Belen, New Mexico, after having handed the engineer ‘a “slow” order directing him to proceed at a speed of 10 miles per hour through Madrone, a station about 2 miles from Belen. The plaintiff went into the caboose and, pursuant to his duties, started to climb into the cupola to signal the engineer. He had almost completed the climb when there was a sudden jar which caused him to fall. • Plaintiff said the jar was caused by “violent slack action”, a sort of accordion action common to freight trains which occurs when the engine is suddenly slowed down without applying brakes to the individual cars of the train. He said that he did not know whether, the engineer suddenly applied the brakes or shut off the power, and that it was impossible to tell from his position in the caboose. It was shown that “slack action” is an ordinary incident of the operation of freight trains and that a certain amount of it is to be expected. The speed of the train at the time' of the alleged slack action was about 10 or 20 miles per hour.
*1100There was testimony from railroad conductors who qualified as experts familiar with the railroad track from Belen through Madrone; in answer to hypothetical questions they said that in their opinion the jar was caused by either the sudden application of brakes to the engine alone, or to a sudden shutting off of power in the engine. The engineer of the train was not called to testify, either in person or by deposition.
At the conclusion of plaintiff’s evidence, defendant demurred thereto and the demurrer was sustained; plaintiff thereafter appealed to this court. In his brief, plaintiff argues the single proposition that the court erred in sustaining the demurrer.
From the record, it is apparant that the •trial court sustained the demurrer for the reason thai(. no- causal connection between defendant’s alleged negligence and plaintiff’s injuries was shown — that proximate cause was not established. The court said that in order for the defendant to be liable for injuries due to slack action, plaintiff must prove that the slack action was unnecessary and unusually violent and that there was a total absence of any evidence on either one of these points.
In this we believe the court was correct. A careful examination of the record reveals that there was a total absence of testimony to the effect that the slack action was either unnecessary or unusually violent. Plaintiff himself said that his fall was due to “violent slack action”; he did not testify that it was either unnecessary or unusually violent. The train conductor, testifying for plaintiff, said that he felt the slack action and that it did not jar him much.
In his brief, plaintiff quotes at length from Missouri, K. & T. R. Co. v. Taylor, 69 Okl. 79, 170 P. 1148, 1151 as a case in which a brakeman was involved in a similar accident. However, in that case, it was shown that a conductor and two cattlemen were thrown a distance of several feet against one end of the caboose, and the jar was severe enough to extinguish all lights in the caboose except the conductor’s lantern. In the body of the opinion the court said “yet plaintiff * * * relies on evidence of other facts and circumstances” to establish negligence. In the case at hand, there is a total absence of such "other facts and circumstances”.
Plaintiff cites several other cases, mostly from other jurisdictions; an examination of them shows that they are all either distinguishable on the facts involved, or that there was positive evidence of negligence on the part of the defendant; they are therefore not applicable here.
See 13 C.J.S., Carriers, § 750, p. 1410, wherein is found the following:
“ * * * the jerk or jolt must be unnecessary or unusually sudden or violent; such jerks and jars as are necessarily incident to the use of the conveyance, and are not the result of negligence, will not render the carrier liable for resulting injuries.”
See also Missouri, K. & T. R. Co. v. Lynn, 62 Okl. 17, 161 P. 1058, wherein the court said in syllabus 3:
“A passenger on a freight train assumes the ordinary risks of injury from jerks, jars, and jolts incident to the movement of such trains, and, in order to warrant a recovery for an injury sustained from a jolt or jar, must show that such jolt or jar was unusual, extraordinary, or unnecessary.”
Since there was no showing that the slack action in the case at hand was unnecessary and unusually violent, and since in the absence of such showing, defendant is not liable, the following rule is applicable:
“Where the evidence as a whole, with all the inferences that can be properly drawn from it, is insufficient to support a judgment in favor of the plaintiff, it is not error to sustain a demurrer thereto.” Duncan v. Keechi Oil & Gas Co., 75 Okl. 98, 181 P. 709.
The judgment of the trial court is affirmed.
JOHNSON, V. C. J., and CORN, DAVISON, O’NEAL, and BLACKBIRD, JJ., concur.