Atchison, T. & S. F. R. Co. v. Hunter

• Decision Date: 10 September 1935
• Docket Number: Case Number: 24470
• Citation: 49 P.2d 86,1935 OK 727,173 Okla. 415
• Parties: ATCHISON, T. & S. F. R. CO. v. HUNTER, Adm'r.
• Court: Oklahoma Supreme Court

1935 OK 727

49 P.2d 86

173 Okla. 415

ATCHISON, T. & S. F. R. CO. v. HUNTER, Adm'r.

Case Number: 24470

Supreme Court of Oklahoma

Decided: September 10, 1935

Syllabus

¶0 Railroads - Action for Death of Pedestrian on Track - Plaintiff's Evidence Held Sufficient to Take Case to Jury - Instructions Held Sufficient.

Record examined, and held: (1) That there was sufficient evidence to take the case to the jury on its merits, and that the trial court did not err in overruling demurrer to plaintiff's evidence, and refusing to instruct verdict for defendant at close of all of the evidence. (2) That the instructions with reference to the last clear chance doctrine were properly given under the evidence and pleadings in the case. (3) That the court did not err in giving the instructions with reference to negligence in failing to give warning at station and crossing. That the instruction of the trial court with reference to the measure of damages was substantially correct.

Appeal from District Court, Tulsa County; Harry L.S. Halley, Judge.

Action by C.S. Hunter, administrator, against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Rainey, Flynn, Green & Anderson and Biddison, Campbell, Biddison & Cantrell, for plaintiff in error.

Bailey E. Bell, W. Cliff Klein, and Gerald B. Klein, for defendant in error.

PER CURIAM.

¶1 For convenience, the parties will be referred to in this opinion as they appeared in the trial court.

¶2 Plaintiff's petition alleged the corporate existence of the defendant, and plaintiff's appointment as administrator of the estate of Ira Hunter, deceased.

¶3 In the charging part of the petition it is alleged, in substance, that the plaintiff and deceased lived south and west of the defendant's station at Mohawk, and that north and east of said station there was located the Mohawk public school building, which was attended by the colored children in the vicinity and by adults and children for church purposes, and that for many years in the past there had been, and was at the time this action arose, a much used trail or passage-way leading from the vicinity of deceased's home north to the defendant's right of way or property line to a point some 200 or 300 yards west of the station, and thence on to said railroad premises and tracks and down past the Mohawk station, to a point south and opposite the schoolhouse, thence north to the schoolhouse; and that this passageway or path was constantly and excessively used by the children and adults in the community, with the knowledge, consent, and acquiescence of the defendant, its agent and employees, and that said thoroughfare was the only road leading to and from the Mohawk station of the defendant; that the children used and traveled this path four times daily during school terms, and that they were often seen by the defendant's agents and employees, and that said path was being so used by the deceased and others on September 8, 1931. Plaintiff further alleged that the tracks passing said station and school are straight for a long distance; that the main line of said tracks runs almost due east and west, paralleled by side tracks, and that said main line is straight for a distance of 429 yards west of the station house, and that then there is a slight curve to the south and west, bearing off some 400 yards to a paved highway or crossing (this is known as Harvard crossing), and that about a mile west of said station, the track begins to slope and continues to do so for some distance east of said station of Mohawk, and that a train traveling east passing Mohawk would be traveling down an excessive grade. That deceased, on September 8, 1931, left the schoolhouse at the noon hour, and traveled the aforesaid path or passageway to his home, in plain view of the employees of the company installing signals at Mohawk station; that on his return to school he followed a path from his home to the point on the right of way some 200 or 300 yards west of the station, thence on to said tracks and down the main line of said tracks; that he was facing a strong wind, and that as he traveled east on said tracks and over said traveled public way, he was struck and killed by defendant's passenger train at a point a short distance east of the station house, the train traveling east; and that said train was traveling through the Mohawk station yard and vicinity at a high, dangerous, and excessive rate of speed, down said slope; that no whistle or bell was sounded for the station or crossings, and that the engineer and fireman saw deceased with his back to the train going down the middle of said track, when the train was 490 yards west or back of the said Ira Hunter, and that they knew he was in a place of peril, but gave no warning, and that they could have, but did not, stop said train, and that this was in violation of their duty to the deceased, and that the failure to warn him of his danger, and the failure to stop said train, was the direct and proximate cause of the injury and death of Ira Hunter; and further alleged that the operation of said train at excessive speed, the failure to sound a warning on approaching the station and crossings, where the company knew, or had reason to believe, that pedestrians would likely be, constituted negligence on the part of the defendant, and that the failure to give the statutory warnings with reference to crossings at grades constituted negligence, which was the sole and only proximate cause of the injury and death of Ira Hunter, and that Ira Hunter was not guilty of contributory negligence, but that his death was caused solely and proximately by the negligence of the defendant, its agent, and employees. Then plaintiff alleged deceased's age, his contribution of labor and services to the plaintiff and their value, and that same exceeded cost of rearing and educating him, and alleged funeral expenses, and prayed for damages in the sum of $2,995.

¶4 The defendant answered with a general denial and a special plea of the deceased's contributory negligence.

¶5 The plaintiff replied to this answer with a general denial and a special denial of the contributory negligence of the deceased.

¶6 The issue thus joined, the case was tried to a jury and a verdict was returned awarding plaintiff $2,955 damages. Judgment was duly entered on the verdict.

¶7 The defendant alleges some 13 assignments of error, but briefs only five propositions for the reversal of the case, to wit:

(1) Error in overruling demurrer to plaintiff's evidence.

(2) Error in refusing to instruct a verdict for defendant at the conclusion of all of the evidence.

(3) Error in giving instructions on the last clear chance or discovered peril doctrine.

(4) Error in submitting as an issue of negligence the statutory duty to give warning at public crossings.

(5) Error in the instructions with reference to the measure of damages.

¶8 It has long been a settled rule of this court that if there is competent evidence reasonably tending to support the verdict, the same will not be disturbed on appeal, and where there is conflicting evidence, this court will not examine the same for the purpose of determining the weight thereof; but when a demurrer is filed and an instructed verdict is requested, this court will examine the record, and if upon such examination, it is found there is no evidence reasonably tending to support the verdict and judgment, such judgment will be reversed. Gulf, C. & S. F. Ry. Co. v. Harpole, 111 Okla. 301, 239 P. 609, and if the evidence reasonably tends to support the verdict, it will not be set aside. Collins Cotton Co. et al. v. Wooten-Burton Sales Co., 81 Okla. 67, 196 P. 681, and St. Louis-San Francisco Ry. Co. v. Rundell, 108 Okla. 132, 235 P. 491.

¶9 In keeping with these rules, we have carefully read and considered all of the evidence in this case. In passing upon the first proposition relied upon for reversal, we have carefully considered all of the plaintiff's evidence. The plaintiff, in a case of this kind, to make out a case meriting the submission of the same to a jury, is compelled to prove primary negligence. This court has many times announced the rule that, where the wrong is not willful and intentional, three essential elements must exist before the negligence is actionable, to wit: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury. (2) Failure of the defendant to perform that duty. (3) Injury to plaintiff proximately resulting from such failure. Missouri, K. & T. Ry. Co. v. Wolf, 76 Okla. 195, 184 P. 765; C., R.I. & P. Ry. Co. v. Anderson, 142 Okla. 276, 286 P. 787, and many other cases.

¶10 In a case such as this one, it is also well settled in this jurisdiction that where the facts with reference to the primary negligence of the defendant are such that all reasonable men should draw the same conclusions and inferences from them, the question of negligence is one of law for the court. St. Louis-S. F. R. Co. v. Jones, 78 Okla. 204, 190 P. 385; St. Louis-S. F. R. Co. v. Teel, 82 Okla. 31, 198 P. 78; Gulf, C. & S. F. Ry. Co. v. Nail, 156 Okla. 294, 10 P.2d 668; New York Plate Glass Ins. Co. v. Katz, 51 Okla. 713, 152 P. 353. It is equally as well settled that in cases where the evidence with reference to these essential elements of primary negligence is such that reasonable men might differ as to the facts and inferences to be fairly drawn therefrom, the case is one for the jury. Littlejohn v. Midland Valley R. Co., 47 Okla. 204, 148 P. 120; Chicago, R.I. & P. Ry. Co. v. Schands, 57 Okla. 688, 157 P. 349; Missouri, K. & T. R. Co. v. Wolf, 76 Okla. 195, 184 P. 765; Lancaster, Adm'x, v. St. Louis & S. P. Ry. Co., 128 Okla. 176. 261 P. 960; Roy, Adm'x, v. St. Louis-S. F. Ry. Co., 153 Okla. 270, 4 P.2d 1038.

¶11 From our careful examination of the plaintiff's evidence, in the light of the above and foregoing rules of law, we think that the trial court...