Chi., R. I. & P. Ry. Co. v. Barton

Citation159 P. 250,1916 OK 623,59 Okla. 109
Decision Date06 June 1916
Docket NumberCase Number: 6058
CourtSupreme Court of Oklahoma
PartiesCHICAGO, R. I. & P. RY. CO. v. BARTON.
Syllabus

¶0 1. Railroads--Accident at Crossing--Proximate Cause of Injury.

Negligence cannot be based upon the failure of those in charge of a train to ring the bell and sound the whistle, where the plaintiff pleads and proves that, while in a position of safety, he knew the train was approaching.

2. Evidence--Competency--Knowledge of Facts.

Where a witness testified that he did not observe or know the speed of the train at the time of the injury, but when urged by counsel testified that in his judgment it was traveling 15 miles an hour or more, held, that the witness, not having observed or knowing the speed of such train, was not qualified to testify with regard thereto.

3. Railroads-- Accidents at Crossings--Speed--Question of Fact.

Where, in the limits of a town, the speed of a train is not regulated by ordinance, a railway company may run its trains at any rate of speed consistent with the safety of such trains and persons rightfully on its premises, but this privilege does not give to such company the right to run into a station at an excessive rate of speed in utter disregard of the safety of persons rightfully upon its premises; such speed must be regulated with due regard for the safety of the public. Held, that whether there was excessive speed, and, if so, whether under facts and circumstances of the case such speed constituted negligence, is a question of fact to be determined by the jury.

4. Same--Burden of Proof.

Whether the excessive speed of a train is the proximate cause of an injury is never presumed, but must be established by the evidence.

5. Same--Evidence.

Evidence examined, and held insufficient to support the doctrine of the last clear chance.

6. Negligence--Actions--Question for Court or Jury--Constitutional Provision.

Section 6, article 23 (Williams') Constitution, providing that the defense of contributory negligence shall in all cases whatsoever be a question of fact, and shall, at all times, be left to the jury, does not take from the courts the right to ascertain whether the three necessary elements of primary negligence exist, viz: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) The failure of the defendant to perform that duty; and (3) Injury to the plaintiff resulting from such failure.

Error from District Court, Texas County; Frank Mathews, Assigned Judge.

Action by J. P. Barton against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

C. O. Blake, R. J. Roberts, W. H. Moore, and J. G. Gamble, for plaintiff in error.

J. S. Harris, Philip J. Breslin, and John L. Gleason, for defendant in error.

RITTENHOUSE, C.

¶1 This action was brought to recover damages for personal injuries received through the alleged negligence of the Chicago, Rock Island & Pacific Railway Company on October 14, 1912, at the station of Tyrone, Okla. The cause was submitted to a jury and resulted in a judgment in favor of plaintiff for $ 1,500. The acts of negligence relied upon for recovery are numerous, but the questions necessary for a determination of the controversy are: Was there any evidence offered reasonably tending to prove that the defendant was guilty of negligence? If guilty of such negligence, was it the proximate cause of the injury?

¶2 It is first alleged that the defendant company caused its train to be run from the whistling post, which was about 160 rods southeast of the depot platform, into the station of Tyrone without causing any whistle to be blown, or bell to be rung, and without giving any warning to the plaintiff of the approach of said train. It is admitted by plaintiff in his petition and also in his evidence that he was standing on the platform, waiting for the arrival of this particular train in order to deliver a package to the mail clerk; that, while so standing on said platform, the engine whistled, whereupon he immediately turned towards the southwest and there observed the train; that he then went a distance of 20 feet into the waiting room, procured the package to be delivered, walked out of the room in a northeasterly direction for the purpose of reaching a point about 50 feet northeast of said waiting room, where the mail car usually stopped; that from the time plaintiff heard said whistle and saw the train, to the time he reached the track and was injured, not more than 15 seconds elapsed. It is apparent, therefore, that the plaintiff knew of the approach of the train within 15 seconds before he was injured, and, knowing of such fact, negligence could not be based upon the failure of the engineer to sound the whistle or ring the bell in order to warn the plaintiff of the approach of said train.

¶3 In the case of the M., K. & T. Ry. Co. v. Gilbreath, 49 Okla. 681, 154 P. 539, Chief Justice Kane, in discussing a similar question, said:

"It seems to us in such circumstances that negligence cannot be based upon the failure of the engineer to ring the bell or sound the whistle to warn the trackmen of the approach of his train when it was obvious to him that they had knowledge of this fact."

¶4 It is next alleged as an act of negligence that defendant company caused said train to be run into the station of Tyrone at a rate of speed in excess of 15 miles per hour, without slowing down or slacking the speed of said train, which rate of speed was greatly in excess of the speed with which said train usually pulled into said station, which it is alleged was 7 miles per hour. The evidence supporting the contention that the train was traveling at an excessive rate of speed, to wit, 15 miles per hour, was given by Tom Davis, who testified as follows:

"Q. Did you observe the speed of the train as it came upon the plaintiff that day? A. No, sir; I did not, not particularly. Q. Did you notice it generally, what distance, the rate of speed? A. I couldn't state. Q. How fast was the train going? In your judgment, how fast was the train running when you observed it? A. I don't know. My judgment would be-- I don't know. Q. Answer. A. My judgment would be that the train was going some place close to 15 miles per hour; maybe more."

¶5 To all these questions and answers the defendant objected. The witness had disqualified himself to testify as to the speed of the train. He did not observe at what particular speed the train was traveling, nor could he state the rate of speed; saying that in his judgment he did not know at what rate of speed the train was running at the time of the injury; and finally, after an unusual amount of exertion on the part of counsel for plaintiff, he testified that in his judgment "the train was going some place close to 15 miles per hour, maybe more." This is the only evidence in the record supporting the theory that the train was traveling 15 miles per hour, and this should have been excluded; the answer showing that it was merely a guess on the part of the witness, he having previously admitted that he did not observe the speed of the train. There was evidence by the enginemen that the train was traveling between 10 and 12 miles an hour as it approached the station, and that it was gradually reducing in speed, until it stopped; whether the train was traveling at an excessive rate of speed when it hit the plaintiff is not shown.

¶6 There is no contention that the speed of the train was regulated by ordinance, and, in the absence of such regulation, defendant might run its trains at any rate of speed consistent with the safety of such trains, and persons rightfully upon its premises; but the privilege of running its trains at such rate of speed does not give to a railway company the right to run into a station at excessive speed in utter disregard of the safety of persons rightfully upon its premises, but the speed must be regulated with due regard for the safety of the public. Where there is evidence of excessive speed, it is for the jury to say whether, under all the facts and circumstances of the case, such speed constituted negligence. Shearman & Redfield on the Law of Negligence (6th Ed.) 460; 33 Cyc. 901; Struck v. Chicago, M. & St. P. Ry. Co., 58 Minn. 298, 59 N.W. 1022; Thompson v. New York Cent. & H. R. R. Co., 110 N.Y. 636, 17 N.E. 690; Custer v. Baltimore & O. R. Co., 206 Pa. 529, 55 A. 1130; Hickey v. New York...

To continue reading

Request your trial
28 cases
  • Simpson v. St. Louis-S.F. Ry. Co., 31282.
    • United States
    • United States State Supreme Court of Missouri
    • 19 Abril 1934
    ......Railroad Co. v. Ford, 281 Pac. 249; Railroad Co. v. Barton, 59 Okla. 109, 159 Pac. 251; Larkey v. Church, 192 Pac. 571; Hoyt v. Railroad Co., 4 Pac. (2d) 751; Railroad Co. v. Perino, 118 Okla. 138, 247 Pac. ......
  • Simpson v. St. Louis-San Francisco Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 19 Abril 1934
    ...... negligent act and that such negligence was the proximate. cause of the injury. Railroad Co. v. Ford, 281 P. 249; Railroad Co. v. Barton, 59 Okla. 109, 159 P. 251; Larkey v. Church, 192 P. 571; Hoyt v. Railroad Co., 4 P.2d 751; Railroad Co. v. Perino, 118 Okla. 138, 247 P. ......
  • City of Tulsa v. Harman, Case Number: 19774
    • United States
    • Supreme Court of Oklahoma
    • 10 Marzo 1931
    ......130, 224 P. 309; Turner v. Durant Cotton Oil Co., 96 Okla. 31, 219 P. 892.         ¶56 In the case of C., R. I. & P. Ry. Co. v. Barton, 59 Okla. 109, 159 P. 250, this court said: "Negligence cannot be based upon the failure of those in charge of a train to ring the bell and sound the ......
  • Schaff v. Daugherty
    • United States
    • Supreme Court of Oklahoma
    • 27 Enero 1925
    ......460; 33 Cyc. 901; M, K. & T. R. R. Co. v. Lasater, 115 S.W. 103, 53 Tex. Civ. App. 51; Chicago, R. I. & P. Ry. Co. v. Barton 59 Okla. 109, 159 P. 250; M., K. & T. R. Co. v. Wolf, 76 Okla. 195, 184 P. 765; St. Louis S. & F. R. Co. v. Jones, 78 Okla. 204, 190 P. 385. 6. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT