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

• Decision Date: 29 April 1924
• Docket Number: Case Number: 12716
• Parties: ATCHISON, T. & S. F. RY. CO. et al. v. BRATCHER, Adm''r.
• Court: Oklahoma Supreme Court

1924 OK 490

225 P. 941

99 Okla. 74

ATCHISON, T. & S. F. RY. CO. et al. v. BRATCHER, Adm''r.

Case Number: 12716

Supreme Court of Oklahoma

Decided: April 29, 1924

Error from District Court, Garfield County; James B. Cullison, Judge.

Action by Samuel Bratcher, as administrator, against the Atchison, Topeka & Santa Fe Railway Company, C. D. Edwards, and Oliver Newland to recover damages for the negligent injury and death of plaintiff''s intestate. Judgment for plaintiff, and defendants bring error. Reversed.

This action was commenced December 15, 1920, in the district court of Garfield county, Okla., by plaintiff, as administrator of the estate of James Cummins, deceased, against the defendants above named by the plaintiff filing his petition in said court wherein it was alleged, in substance, that on October 19, 1920, between the hours of 12 and 1 o''clock, the said James Cummins and his wife, Minnie A. Cummins, started to return to their home from the town of Nash in their five-passenger Scripps-Booth touring car, which car was being driven by the said James Cummins, both occupying the front seat thereof; that it was necessary for the said James Cummins to cross the railway tracks of the defendant corporation, and that he approached the same from the east on what is known as Grand avenue in the said town of Nash; that in approaching said tracks from the east the view of said railroad tracks to the north and northwest was obstructed by buildings on the north side of Grand avenue, and that on this occasion there was also a work train of the defendant corporation standing upon what is known as the passing track near to and north of said Grand avenue, and that this further obstructed the view of the tracks to the north and northwest; that at the crossing of Grand avenue and the said railway there are three tracks, the one farthest east being known as the passing track, the one next west being the main line track, and the third still farther west being known, as the switch or house track; that as the said James Cummins approached said crossing he slowed up his automobile and proceeded cautiously, watching for approaching trains; that C. D. Edwards was conductor on the work train, Harley Moore was a brakeman on said train, and E. J. Fitch was engineer of said work train; that all of the three last named persons were standing close to said crossing and all of them saw the said James Cummins and his wife approach in said automobile, and all of them knew at the time that the mixed train of the defendant company. was approaching from the northwest, and that it was dangerous for said James Cummins to attempt to cross said track in front of said approaching train; that the said Moore signaled to the said James Cummins to come on and cross said track, and the said Edwards and Fitch knew of said signal; that after said signal had been given the said James Cummins proceeded to drive his car slowly across said railroad track and the said Edwards, Moore, and Fitch made no effort to stop or prevent him from going upon said track, and that as the said James Cummins reached the main line track said mixed train was rapidly approaching and was being operated by Oliver Newland, its engineer; that said train was behind its schedule and was running at an excessive and dangerous rate of speed; that when said James Cummins saw said train rapidly approaching he and his wife jumped from the automobile and that when the said James Cummins was at a point opposite the left front fender of said automobile the engine of the mixed train struck said automobile on the right side with such force as to throw it against and upon the said James Cummins, inflicting injuries from which death resulted; that it was the duty of the defendant to have established signals or to have stationed employes at said crossing to protect the public, and that its failure so to do was negligence; that it was the duty of the servants, agents, and employes of the defendant company who were at said crossing to have prevented the said James Cummins from attempting to cross in front of said train, and that their failure to do so was negligence; that it was the duty of Oliver Newland to have sounded signals and set the emergency brakes after discovering the perilous position of the said James Cummins and to have thus averted the accident, and that his failure so to do was negligence.

Defendants filed separate answers which were substantially the same and consisted, first, of a general denial, and, second, of special pleas of contributory negligence.

Reply was filed to these answers and trial was had February 19, 1921, resulting in a verdict in favor of the plaintiff and against all of the defendants for the sum of $ 10,000. Judgment was rendered on this verdict and after unsuccessful motion for new trial defendants have brought the case here by petition in error with case-made attached for review. The parties will be hereafter referred to as plaintiff and defendants, respectively, as they appeared in the trial court.

Syllabus

¶0 1. Railroads -- Crossing Accidents -- Negligence--Principles of Liability of Servants.

In an action for damages for death resuiting from a crossing accident, where a servant of the railroad company not engaged in operating the train which inflicted the injuries, and another servant of the company who was operating such train, are both joined with the company as parties defendant, the principles of liability are different and distinct as to each of the individuals so joined as defendants, so that neither is liable for the negligence of the other.

2. Master and Servant--Rule of Respondeat Superior--Contributory Negligence.

Negligence of a servant by which the master becomes secondarily liable under the rule of respondeat superior is primary negligence, but recovery therefor may be defeated by establishing contributory negligence thereafter operating to proximately cause the injury.

3. Same--Doctrine of Last Clear Chance.

Negligence of a servant by which the master becomes secondarily liable under the doctrine of last clear chance is primary negligence, but it exists and operates to fix liability only after contributory negligence has ceased, and after the peril caused by the contributory negligence has been discovered.

4. Same--Crossing Accident--Instructions--Inconsistent Theories.

In such an action, where the instructions of the court commingle and confuse these two distinct and inconsistent theories of liability so that the jury is authorized to return a verdict against the servant first mentioned because of negligence of the second servant under the doctrine of last clear chance, notwithstanding contributory negligence may have intervened between the first servant''s negligence and the injury, and which instruction also authorized the jury to return a verdict against the second servant because of the negligence of the first servant, although said second servant did not discover the perilous situation after it arose in time to avert the injury by the use of reasonable or ordinary care, such instruction is prejudicially erroneous.

5. Railroads--Crossing Accident -- Primary Negligenee--Conflicting Testimony--Jury Question.

Where the question of primary negligence arises upon conflicting testimony as to the speed of a train as it approached a crossing where the injury occurred, and as to the precautions observed by the railroad company to prevent accidents, an instruction which tells the jury as a matter of law that it is the duty of the railroad company''s servants operating its train to approach a crossing in a village at a lesser speed than a country crossing would be approached is erroneous, for the reason that when the testimony is in conflict upon the degree of care used or the existence of primary negligence in any case, so that reasonable men might honestly draw different conclusions therefrom, the question of whether the evidence establishes negligence is for the determination of the jury under proper instructions.

Commissioners'' Opinion, Division No. 1.

Cottingham, Hayes, Green & McInnis, Frank G. Anderson, and Curran & Kruse, for plaintiffs in error.

Simons, McKnight & Simons, for defendant in error.

Opinion by LOGSDON, C.

¶1 Only questions of law arising upon instructions given and refused are presented by this proceeding. The first proposition presented questions the correctness of instruction No. 7 contained in the court''s general charge to the jury. This instruction reads:

"You are instructed that a railroad company is liable for injuries received by one in attempting to cross the track in front of a moving train even though such person is guilty of contributory negligence, if after discovering his perilous position the employes of the railroad company having charge of its train or who were in a position to prevent the accident, failed or neglected to use all possible effort to avoid the injury."

¶2 It is insisted that this instruction (a) improperly submits the doctrine of last clear chance, and (b) imposes a higher degree of care on defendants than the law requires. The first criticism requires a review and consideration of the evidence. For this purpose the evidence as to material and relevant matters will be merely abstracted where there is no substantial conflict, but upon material issues where the evidence conflicts the testimony will be quoted. Briefly stated, the evidence shows without substantial conflict the following facts:

¶3 That Grand avenue in the town of Nash is a section line highway extending east and west, and that the line of railway of the A., T. & S. F., where it intersects Grand avenue, extends practically from northwest to southeast; that on October 19, 1920, plaintiff''s intestate had been in the town of Nash and in that portion of the town lying east of the railway; that between 12 and 1 o''clock that day deceased started to return to his home about three miles southwest of Nash; that be was accompanied by his...