Atchison, T. & S.F. Ry. Co. v. Templar

• Decision Date: 27 March 1951
• Docket Number: No. 33866,33866
• Citation: 204 Okla. 460,230 P.2d 907
• Parties: ATCHISON, T. & S. F. Ry. Co. v. TEMPLAR.
• Court: Oklahoma Supreme Court

Page 907

230 P.2d 907

204 Okla. 460

ATCHISON, T. & S. F. Ry. Co. v. TEMPLAR.

No. 33866.

Supreme Court of Oklahoma.

March 27, 1951.

Rehearing Denied May 1, 1951.

Application for Leave to File Second Petition for Rehearing

Denied May 15, 1951.

Syllabus by the Court.

1. Ordinarily, the presence of a train or railway cars on a crossing, whether moving or stationary, is sufficient notice to a driver of a vehicle on the highway of such obstruction and, in the absence of unusual circumstances, the operating railway company is not under any duty to provide any other notice or warning.

2. Evidence examined, and held to be insufficient to show primary negligence on the part of defendant.

Rainey, Flynn, Green & Anderson and M. M. Gibbens, all of Oklahoma City, for plaintiff in error.

Homer Bishop, Seminole, John L. Goode and Mark Goode, both of Shawnee, for defendant in error.

LUTTRELL, Vice Chief Justice.

This is an action for wrongful death, brought by George W. Templar, administrator of the estate of Loran Earl Kesler, deceased, against the Atchison, Topeka and Santa Fe Railway Company. The petition contained two counts or causes of action, the first for wrongful death, and the second for funeral expenses and damages for conscious pain and suffering. Defendant answered by general denial, and pleaded that the deceased was guilty of negligence and contributory negligence, which were the sole and proximate cause of the injury and death of the deceased. The trial court overruled the motion of defendant for directed verdict at the close of all the evidence, and submitted the cause to a jury, which returned a verdict for plaintiff on the first cause of action. Defendant appeals.

The sole contention of defendant on appeal is that the evidence was insufficient to establish primary negligence on the part of the defendant as the proximate cause of the death of the deceased, and that therefore the trial court erred in overruling its motion for directed verdict.

From the record it appears that on June 20, 1947, at about 9:45 P.M., the deceased, driving a truck, was traveling south on state highway No. 81 at or near the outskirts of the city of Medford. The highway runs in a northerly and southerly direction, and just outside of the city of Medford crosses the main line of defendant, which runs in an easterly and westerly direction. At the time of the collision a freight train of defendant blocked the crossing, and was moving slowly forward at an estimated speed of three or four miles per hour. The truck driven by deceased crashed into a loaded wheat car some 15 or 16 cars back of the engine, which collision resulted in the death of the deceased. The night was cloudy and dark and it had rained the day before. The highway is level, but curves just before reaching the railroad tracks. Some 344 feet north of the tracks on the west side of the road, or the right-hand side of one driving south on the highway, the highway department maintained a sign, yellow in color set with glass facets, warning approaching travelers of the railroad crossing. Some 200 feet north of the crossing there was a filling station set back some 35 or 40 feet from the west edge of the pavement, and in front of the station was a large floodlight and sign advertising gasoline. The driveway of this station was composed of red clay and gravel. Some 106 feet north of the tracks on the west side of the pavement was a 'slow' sign. On the east side of the pavement and close to the tracks was the regulation railroad crossing sign maintained by the defendant. On the south side of the tracks was a wig-wag which, however, was concealed from an approaching traveler when the crossing was blocked by a train for the reason that the box cars were higher than the wig-wag itself. There was evidence produced by plaintiff tending to show that the view of one approaching the crossing was obstructed by weeds and cane, or a cane patch, but from photographs introduced in evidence it appears that for at least 100 feet north of the railroad tracks an approaching traveler had a clear and unobstructed view of the crossing itself.

Deceased was 19 years of age. He was at the time of his death driving a truck belonging to one Watts, the owner of a truck line, having theretofore gone through a training period and been pronounced qualified as a truck driver by Watts. He was accompanied by another truck driver named Campbell, whom he had relieved at Caldwell, Kansas. Campbell, who was not killed in the accident, testified that at the time of the collision the truck was traveling some 15 miles per hour, and that he, Campbell, did not see the box car across the highway until they were within some 15 feet of the intersection. Witnesses for the defendant who observed the accident, including one disinterested witness, placed the speed of the truck as it approached the intersection at approximately 40 miles per hour. The supervisor of Watts Trucking Lines testified that the headlights and brakes on the truck were in good working order, and that at a speed of 15 miles per hour the truck could be stopped in less than 25 feet.

Defendant in this court invokes the rule announced in Fleming v. Loch, 200 Okl. 448, 195 P.2d 942; Thompson v. Carter, 192 Okl. 579, 137 P.2d 956; Lowden v. Bowles, 188 Okl. 35, 105 P.2d 1061, and other decisions of this court holding that if a train is on a crossing, whether moving or standing still, that in itself is sufficient notice to a driver of a vehicle on the highway of such obstruction, and that the driver of an approaching vehicle is under the statutory duty to so drive his vehicle that he can stop before he reaches the crossing. In these cases we held that the rule therein announced ordinarily obtained, but in Thompson v. Carter, supra, we said that it obtained in the absence of unusual circumstances which rendered the crossing...