Cain v. St. Louis-San Francisco R. Co.

• Decision Date: 01 November 1955
• Docket Number: LOUIS-SAN,No. 36590,36590
• Citation: 293 P.2d 355
• Parties: Maedean CAIN, for herself, and as natural guardian and next best friend of her minor children, Connie Sue Cain, Jessie Jo Cain and David Wayne Cain, Plaintiffs in Error, v. ST.FRANCISCO RAILROAD COMPANY, a foreign corporation, Morgan Edward Odom and Audie B. Wolfe, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 355

293 P.2d 355

1955 OK 313

Maedean CAIN, for herself, and as natural guardian and next

best friend of her minor children, Connie Sue

Cain, Jessie Jo Cain and David Wayne

Cain, Plaintiffs in Error, v. ST. LOUIS-SAN FRANCISCO RAILROAD COMPANY, a foreign

corporation, Morgan Edward Odom and Audie B.

Wolfe, Defendants in Error.

No. 36590.

Supreme Court of Oklahoma.

Nov. 1, 1955.

Rehearing Denied Jan. 10, 1956.

Application for Leave to File Second Petition for Rehearing

Denied Feb. 4, 1956.

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. The question of negligence or no negligence is one of law for the court, where but one inference can reasonably be drawn from the evidence.

3. Where the evidence failed to establish primary negligence on the part of defendant railroad and its employees in blocking crossing the trial court properly sustained demurrers to plaintiffs' evidence.

Appeal from the Superior Court of Creek County; W. L. Cheatham, Judge.

Actions for damages for alleged wrongful death wherein trial court sustained demurrers to plaintiffs' evidence and they appeal. Affirmed.

Dickey, Terry & Richard, Tulsa, Jack Sellers, Drumright, for plaintiffs in error.

Satterfield, Franklin & Harmon, Oklahoma City, James L. Homire, St. Louis, Mo., for defendants in error.

CORN, Justice.

This appeal resulted from an action brought to recover damages for alleged wrongful death of plaintiffs' decedent in a railroad crossing accident. The accident occurred at a point where West 21st street, also called Mideo Road, in Tulsa County, is crossed by the defendant railroad's spur track which serves industrial plants in the vicinity. Shortly before 4 A.M. on the morning of June 17, 1953, one of defendant's diesel switch engines was pushing two flat cars and a box car along the spur track, preparatory to 'spotting' the box car at an industrial plant located south of West 21st street. In order to accomplish this it was necessary to open gates giving entrance to the plant property. The train was brought to a stop with the box car blocking the crossing while a trainman (defendant Odom) went to open the gates in order to permit entrance of the box car onto plant property. An automobile, owned and operated by one Casteel, and in which Ralph Joe Cain, husband and father of plaintiffs, was a passenger, was traveling west at a high rate of speed. The automobile struck the box car upon the crossing and plaintiffs' decedent was killed instantly.

After alleging the factual matters surrounding the accident the petition charged defendant, and the employees as party defendants, with negligence in operating the train without lights; failure to give warning of the train's approach to the crossing; failure to maintain a lookout and in backing the train upon the crossing without warning; failure to have signalman at crossing to warn motorists; negligence of switchman in leaving the crossing and going upon private property to open the gates, instead of staying at crossing to warn motorists; negligence in permitting view of crossing to become obscured by vegetation, and also by obstacles located east of crossing which blocked view of train from that direction. The petition sought damages for pecuniary loss, support and maintenance resulting from the death. A demurrer was sustained as to a second cause of action based upon a claim for funeral expenses.

Defendants denied the existence of negligence, and affirmatively alleged negligence of the driver as the proximate cause of the accident, and decedent's contributory negligence; and, that the driver was decedent's agent, or that the parties were engaged in a joint mission. Defendant also interposed the defense of unavoidable casualty.

The issues were completed by plaintiffs' reply which denied all matters asserted in defense, and made verified denial of the existence of agency, or that the parties were upon a joint mission.

The evidence at the trial disclosed the train, consisting of a box car, two flat cars and the engine, approached the crossing from the north. The switchman, the defendant Odom, 'flagged' the crossing and then signaled the engineer, the defendant Wolfe, to proceed. The train then moved south to a point where the box car completely blocked the crossing and was stopped by the switchman's signal, in order that he might open two large gates leading into the plant where the box car was to be 'spotted', or placed. Having opened the gates Odom returned to the engineer's side (west side between the gate and box car) of the train and signaled for the train to be moved. However, at that moment he also discovered the automobile some 200 yards to the east of the crossing and approaching at a high rate of speed. He thereupon signaled the engineer to stop and ran toward the pavement swinging his lantern in an effort to warn the automobile. The train had been blocking the crossing approximately 2 minutes, and defendant testified some 30 seconds elapsed between discovery of the approaching automobile and the time of impact against the box car. Both defendants who were members of the train crew testified no warning signals were given by bell or whistle, and that there were no lights upon the box car. The engineer testified there was a signal which could have been given to instruct him to sound the whistle, but he received no such signal. He also testified the brakers had been set and that the train was not moving at the time of the impact.

There was testimony by a retired railroad engineer controverting defendants' evidence relative to existence of signals which could be given in order to instruct an engineer to sound warnings. This witness further testified that upon receiving a proper signal, acting under normal conditions, the train could have been reversed and the box car moved 20 feet within a very few seconds. The witness also testified as to what he considered proper methods involved in switching operations such as defendants carried on in this case. His testimony was of such a nature as to establish a conflict in the evidence relative to the propriety of defendants' operations.

The highway patrolman who investigated the accident testified concerning his observations tending to establish the speed of the automobile. He testified his observations established that a person in an automobile could ascertain the presence of a train upon the crossing in the nighttime at a distance of a half mile; approaching the crossing from the east with lights on low beam a standing box car could be seen from approximately 400 feet; with lights on high beam a standing box car could be seen at approximately 800 feet.

At the conclusion of plaintiffs' evidence the defendants interposed separate demurrers thereto, upon the ground that the evidence was insufficient to show...