Holt v. Thompson
| Decision Date | 19 November 1940 |
| Docket Number | No. 2117.,2117. |
| Citation | 115 F.2d 1013 |
| Parties | HOLT v. THOMPSON. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Lawrence Mills, of Tulsa, Okl. (C. B. Randell, of Sherman, Tex., on the brief), for appellant.
William L. Curtis, of Fort Smith, Ark., for appellee.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
This is an action by the appellant, Jessie F. Holt, against Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, to recover damages for personal injuries.
At the conclusion of the appellant's evidence, the trial court directed a verdict for appellee and from this judgment appellant appeals.
The evidence developed the following facts: Highway 62 leads from Muskogee, Oklahoma, through the City of Fort Gibson (population 1,200), and is one of the main arteries of travel in Northeastern Oklahoma. Appellee maintains and operates a railroad through the City of Fort Gibson, which intersects Highway 62 at right angles about one block from the center of the City.
Between 12 and 1 A. M., on September 23, 1938, the appellee's train of freight cars had either stopped or was slowly moving across the highway at the point of intersection. The appellant was a passenger in a 1938 Ford V-8 truck, driven by one C. C. Norwood, in which there were two other passengers, all in the front seat. The truck was traveling in a westerly direction, slightly down grade toward the intersection, between 35 and 45 miles per hour. The appellant was sitting on the lap of another passenger, with her back toward the side door. The truck proceeded through the city of Fort Gibson, and to a point of intersection of the railroad and highway, where it crashed into the train of cars, striking between a black coal car and a black tank car. No one in the truck saw the train nor was the speed of the truck slackened on approaching the crossing. The driver testified that he "just looked down the highway and could see the lights all the way through and could not see the train." The driver of the car was familiar with the crossing, having passed over it a good many times.
There was a street light about one hundred feet east of the intersection, which burns all night and was burning at the time of the accident. The street light was 12 to 15 feet above the surface of the ground and between the curb and the sidewalk. There was a standard railroad sign at the crossing and other reflector type signs at the side of the pavement, which indicated the crossing.
As the truck moved toward the intersection it was observed by the night watchman of Fort Gibson, who flashed his light in front of the car to warn of the approaching danger but it did not attract the attention of the occupants of the car. No brakeman or night watchman was employed at the intersection nor was there any crossing bells or warning signals, except as hereinabove stated.
It is the contention of the appellant that the presence of the street light, at the place described, tended to obscure the vision of the driver of an automobile approaching the railroad crossing at this point because the street light decreased the visibility of one approaching it, especially if the objects on the railroad track are dark so as to prevent or decrease reflection.
The testimony of an illumination engineer tended to support this contention. He testified in substance that light from an automobile when brought in cross rays with a street light of this character would not reflect objects, especially dark objects just beyond the arc of light shed by the street light; that the efficiency of the automobile lights would be impaired until the lights of the automobile were within 12 or 15 feet of the street light, which when translated into distance would mean that the vision of the driver of the truck was not obscured when he was approximately one hundred feet from the track.
The night watchman, also, testified that lights from an automobile will reflect on the cars of a train for almost a block, if one is looking carefully.
The appellant contends that under the prevailing circumstances an unsafe and hazardous condition was created, of which the railroad company should have known, and given warning of its presence and its failure to do so was a breach of ordinary care.
Under the Oklahoma law, the presence of a railroad train, or cars, on a crossing is sufficient notice to the driver of a vehicle on the highway of such obstruction and in the absence of unusual circumstances the railroad company is not under duty to provide any other notice or warning.1
The question, therefore, under the facts is whether or not the prevailing circumstances created a peculiar and unusual condition, which imposed a duty on the railroad company to give a warning or signal of the presence of the cars on the railroad track at this time, and place, in order to constitute primary negligence.
It is urged that the facts and law in this case are controlled by the rule announced in the Smith Construction Company v. Brumley case, supra, in which this court adhered to the general rule prevailing in Oklahoma, but in the Smith Construction Company case the Court was dealing with a crossing whereat it was shown that the light extending down the railroad tracks from the rear of a locomotive engine and reflecting upon a dark car could have created such an unusual or peculiar condition as to take such facts out of the general rule and impose upon the railroad company the duty to give additional warning, and which facts presented a jury question.
The facts in the Smith Construction Company case are clearly distinguishable. There the railroad company maintained the light which reflected across the intersection....
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State ex rel. Thompson v. Cave
... ... absence of special circumstances rendering the crossing ... peculiarly hazardous; and the burden is on him to show these ... circumstances. Dimond v. Terminal R. Assn., 346 Mo ... 333, 141 S.W.2d 789; Zickefoose v. Thompson, 347 Mo ... 579, 148 S.W.2d 784; Holt v. Thompson, 115 F.2d ... 1013; Capelle v. Baltimore & Ohio R. Co., 136 Ohio ... St. 203, 24 N.E.2d 822. (2) Unless substantial competent ... evidence is produced showing the crossing to be unusually ... dangerous, the question is one of law for the court ... Dimond v. Terminal R. Assn., 346 ... ...
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Hurst v. Union Pacific R. Co.
...the occupied crossing rule prevailed after plaintiff had an opportunity to present evidence in a trial. See, e.g., Holt v. Thompson, 115 F.2d 1013 (10th Cir.1940); Wm. A. Smith, Constr. Co. v. Brumley, 88 F.2d 803 (10th Thus, in the summary judgment context, the application of the occupied ......
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Hewitt v. Spokane, P. & S. Ry. Co.
...which, I submit, was not foreseeable. Judge Murrah puts it much better than I, in his opinion in a very similar case (Holt v. Thompson, 1 115 F.2d 1013, 1016 (C.A.10th) 1940). There, the plaintiff was a passenger in a Ford truck which crashed into a train of cars. There was a street light s......
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Smoot v. Chicago, Rock Island and Pacific Railroad Co., 9135.
...circumstances, the operating railway company is not under any duty to provide any other notice or warning." See also, Holt v. Thompson, 10 Cir., 115 F.2d 1013; Wm. A. Smith Constr. Co. v. Brumley, 10 Cir., 88 F.2d 803; Cain v. St. Louis-San Francisco R. Co., Okl., 293 P.2d 355; Atchison, T.......