Clark v. St. Louis & S.F.R. Co.
| Decision Date | 14 September 1909 |
| Citation | 108 P. 361,24 Okla. 764,1909 OK 219 |
| Parties | CLARK v. ST. LOUIS & S. F. R. CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
When the evidence is conflicting, or when the facts are undisputed, but different minds might reasonably draw different conclusions from them, the question of negligence is always for the jury.
In an action to recover damages for alleged negligence, whereby the plaintiff was injured at a railroad crossing, it appeared that the plaintiff at the time of the accident was driving north on a street in a village towards the railroad crossing in a farm wagon covered with a wagon sheet, the corners of the sheet being tied down at each end. At the point of collision the railroad track runs east and west, the street running north and south. The plaintiff was driving a team of gentle horses, and was traveling about three or four miles an hour. As he approached within about 50 feet of the crossing he stooped forward, looked up and down the track, and listened for approaching trains, but did not see or hear any that from the place where he looked and listened he could see the track to the east, the direction from which the train was coming, for a distance of 500 or 600 feet, the view beyond that being obstructed by a section house which stood east of the street on which he was traveling and near the track; that after he looked and listened he sat down on the wagon seat which was 18 or 20 inches under the wagon sheet, and drove on towards the crossing in an ordinary walk, and continued at this pace until his wagon was struck by the train; that he knew the crossing was there, having crossed it several times before; that his hearing and eyesight are fairly good; that before the accident the bell of the engine did not ring neither did the whistle blow; that he did not see any part of the train or engine. and did not know there was a train approaching until he was struck; that the train was about 2 1/2 hours late and was running at the rate of 30 or 40 miles an hour, and no effort was made to stop it before the collision occurred. Held, that the questions of negligence on the part of the defendant, and contributory negligence on the part of the plaintiff, were questions of fact for the jury, and it was error for the court below to sustain a demurrer to such evidence.
The doctrine of last clear chance is recognized by the courts, as an exception to the general rule that the contributory negligence of the person injured will bar a recovery, without reference to the degree of negligence on his part, and under this exception to the rule the injured person may recover damages for an injury resulting from the negligence of the defendant, although the negligence of the injured person exposed him to the danger of the injury sustained, if the injury was more immediately caused by the want of care on the defendant's part, to avoid the injury, after discovering the peril of the injured person.
(Additional Syllabus by Editorial Staff.)
The presence of a railroad track on which a train may at any time pass is notice of danger to such an extent that it is the duty of a person about to cross the track on a public highway to exercise caution in so doing, and to stop, look, and listen before crossing, and it is negligence per se to omit such ordinary precautions.
Where there was no evidence that the engineer in charge of a train which struck plaintiff at a crossing discovered plaintiff's peril until the accident, the doctrine of last clear chance does not apply, though the engineer may have seen plaintiff approaching the track in a covered wagon, the engineer having a right to presume that a person so approaching the track had not omitted the ordinary precautions, and would stop in time to avoid an injury.
Error from District Court, Comanche County; F. E. Gillette, Judge.
Action by James H. Clark against the St. Louis & San Francisco Railroad Company. A demurrer to the evidence was sustained, and plaintiff brings error. Reversed and remanded for a new trial.
J. L. Hamon and Chas. Mitschrich, for plaintiff in error.
R. A. Kleinschmidt and Flynn & Ames, for defendant in error.
This was an action for damages for personal injuries, commenced by the plaintiff in error, plaintiff below, against the defendant in error, defendant below, in the district court of Comanche county, Okl. The petition of plaintiff alleged, in substance, that he was injured at a railroad crossing at the town of Cache, in said county, by a train of defendant striking the wagon in which he was driving, and violently throwing him to the ground. The negligent acts complained of were the failure of the employés of the defendant to ring the bell of its engine, or whistle for the crossing, and the failure of the company to erect a sign board as required by law. The answer of the defendant was a general denial, and a plea that the injury resulted from the contributory negligence of the plaintiff. The evidence introduced on behalf of the plaintiff tended to show that at the time of the accident he was driving north on Fifth street, towards the railroad crossing in a farm wagon covered with a wagon sheet, the corners of the sheet being tied down at each end. At the point of the collision the railroad track runs east and west, the street being nearly level with it. The plaintiff was driving a team of gentle horses, and was traveling about three or four miles an hour; that as he arrived within about 50 feet of the crossing he stooped forward, put his hand on the dash board, looked up and down the track, and listened for approaching trains; that from the place where he looked and listened he could see the track to the east, the direction from which the train was coming, for a distance of about 500 or 600 feet, the view beyond that being obstructed by a section house which stood east of the street on which he was traveling, and near the track; that after he looked and listened he sat down on the wagon seat and drove on towards the crossing in an ordinary walk, and continued at this pace until his wagon was struck by the train; that he knew the crossing was there, having crossed it several times before; that his hearing and eyesight are fairly good; that before the accident the bell of the engine did not ring, neither did the whistle blow; that he did not see any part of the train or engine, and did not know there was a train approaching until he was struck; that no effort was made to stop the train by the trainmen before the collision occurred; that the train was about 2 1/2 hours late, and was running at the rate of 30 or 40 miles an hour; that before plaintiff drove upon the crossing those within the wagon could not be seen by those outside on account of the wagon sheet covering the wagon; that the train consisted of two passenger coaches, baggage and mail car, engine and tender, and ran about the length of the train before they stopped after striking plaintiff's wagon; that the trainmen could have seen plaintiff's wagon 500 or 600 feet at a distance of 50 to 75 feet south of the crossing on Fifth street, and the nearer he approached the track the farther they could have seen him. After the plaintiff rested his case, the defendant interposed a demurrer to the evidence, which was sustained by the court, and thereupon the court excused the jury and entered judgment in favor of the defendant and against the plaintiff for costs. To review this judgment the case is now in this court by petition in error and case-made.
There are but two questions presented to this court for determination: (1) Was the plaintiff guilty of contributory negligence? and (2) if he was, is he entitled to the benefit of the doctrine of the last clear chance? Both parties agree that the court below sustained the demurrer to the evidence upon the ground that the plaintiff was guilty of contributory negligence, and that the demurrer to the evidence was sustained upon the authority of Severy v. C., R.I. & P. Ry. Co., 6 Okl. 153, 50 P. 162; the Supreme Court of Oklahoma territory basing its decision upon the Houston Case, 95 U.S. 697, 24 L.Ed. 542, and the Freeman Case, 174 U.S. 379, 19 S.Ct. 763, 43 L.Ed. 1014. The plaintiff contends that the foregoing cases are not in point, and, further, that if the plaintiff was guilty of contributory negligence the failure of the railway company to attempt to avoid the accident when, by the exercise of proper care, it might have discovered the perilous situation of plaintiff in time to stop the train and avert the calamity was the proximate cause of the injury, and therefore the plaintiff was entitled to recover notwithstanding his negligence. In other words, he insists that he is entitled to the benefit of the doctrine of the last clear chance.
On the first proposition we believe it was error for the court below to sustain the demurrer to the evidence. The case at bar is quite distinguishable from the cases hereinbefore referred to, upon which the judgment of the court below was based. In all of those cases it was admitted that the plaintiff did not look and listen before going upon the track. It is true that in the Severy Case there was no specific finding that the plaintiff did not look and listen, but Mr. Chief Justice Dale, who delivered the opinion of the court, no doubt inferred from the answers of the jury to several interrogatories propounded to it that he did not, and that the opinion is based upon that theory is obvious from the following language quoted from the opinion of the learned chief justice: "Under the facts as established in this case, it appears that the deceased at any time after he reached a point 49 feet west of the crossing might have, by casting his eyes to the west, discovered the approach of the...
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