Murray v. Empire District Electric Co.
Murray v. Empire District Electric Co.
Opinion of the Court
The opinion of the court was delivered by
Dolly Murray began an action against the Empire District Electric Company for causing the death of her husband by the negligent operation of its dam on Spring river. The defendant filed an answer setting out these four defenses: (1) a general denial; (2) contributory negligence; (3) the lawfulness of its use of the dam; and (4) negligence of third persons. The plaintiff demurred to the third and fourth defenses. The demurrer was sustained and the defendant appeals.
The petition alleged that the plaintiff’s husband was traveling with a team and wagon, along an Oklahoma highway,
The third defense, after stating that the defendant’s dam is maintained to create power for the manufacture of electricity, proceeds thus:
“And that said dam was at the time of said alleged accident and ever since said dam was built, maintained and used in a reasonable and proper manner so as not to interfere with the steady and constant natural flow of said stream except to that extent which is reasonable in the operation of said dam, for said purposes, and as defendant had a right to do.
“And defendant especially avers that at the time of the alleged accident to plaintiff’s intestate it was using and operating said dam in the reasonable and lawful manner and in such manner as it had a right to do.”
The defendant interprets the ruling of the trial court as implying that it can be held liable upon a mere showing that the death resulted from the operation of its dam, without proof of any negligence on its part; and its argument is largely directed to a refutation of this theory. The plaintiff, however, makes no such contention, but maintains that the demurrer was rightly sustained because the allegation of the lawfulness of the defendant’s conduct is a mere conclusion of law, and amounts only to a denial of the charge of negligence.
We do not regard the ruling as open to the construction placed upon it by the defendant, nor as erroneous. The third
The fourth defense was demurrable. If the negligence of the defendant was the proximate cause of the death of the plaintiff’s husband, the concurrent negligence of a third person can not affect its liability. (29 Cyc. 497, 498.)
The views stated require an affirmance of the judgment, and there is nothing before us upon which to determine any other questions affecting the defendant’s liability.
The judgment is affirmed.
Reference
- Full Case Name
- Dolly Murray v. The Empire District Electric Company
- Cited By
- 1 case
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- Published
- Syllabus
- SYLLABUS BY THE COURT. 1. Negligence — Opening Flood Gates of Dam — Flooding Public Road Crossing — Traveler Drowned — Pleadings. Where a petition alleges an injury to have been caused by the negligent act of the defendant, a demurrer is rightly sustained to a part of an answer additional to a general denial, which merely states that the action of the defendant complained of was rightful. 2. Same. A demurrer is properly sustained, in an action based upon the negligence of the defendant, to a defense which merely alleges that the injury complained of was due to the negligence of a third person.