Kansas, O. & G. Ry. Co. v. Painter
| Decision Date | 05 November 1958 |
| Docket Number | No. 37807,37807 |
| Citation | 333 P.2d 547 |
| Parties | KANSAS, OKLAHOMA & GULF RAILWAY COMPANY, a corporation, Plaintiff in Error, v. Earl LeRoy PAINTER, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. 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.
2. 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.
3. Where the evidence failed to establish primary negligence on the part of the defendant railroad and its employees in blocking crossing of tracks and highway crossing, the trial court should sustain demurrer to plaintiff's evidence.
Appeal from Superior Court of Okmulgee County; Don Barnes, Judge.
Action by Earl LeRoy Painter against Kansas, Oklahoma & Gulf Railway Company in the Superior Court of Okmulgee County to recover damages for personal injuries, growing out of a collision between a truck driven by plaintiff and a train of defendant as the train was passing over a highway crossing near Dewar, Oklahoma. Jury verdict for the plaintiff and defendant appealed. Reversed with directions.
Looney, Watts, Looney & Nichols, Oklahoma City, James D. Gibson, Muskogee, Steele & Boatman, Okmulgee, for plaintiff in error.
Foliart, Hunt & Shepherd, Oklahoma City, Charles W. Gregory, Oklahoma City, for defendant in error.
This action for damages for personal injuries was filed in the Superior Court of Okmulgee County, Oklahoma, by Earl LeRoy Painter against the Kansas, Oklahoma & Gulf Railway Company, a corporation, and judgment for plaintiff, based upon a jury verdict, was rendered for the sum of $35,509.22. The parties will be referred to as plaintiff and defendant as they appeared in the trial court.
The injuries complained of by the plaintiff were the result of a collision of a 2 1/2 ton truck driven by plaintiff in an easterly direction on Highway 266 just west of the town of Dewar and east of Henryetta, where the highway crosses the branch or switchline of defendant, running north and south and about 1 1/2 blocks north of defendant$hs main line. Defendant's engine was backing toward the south and pulling a caboose at an admitted speed of 8 to 10 miles per hour when plaintiff's truck, moving east on the highway, struck the defendant's engine 60 feet from the front part of the engine that had already passed over the crossing of the highway.
Plaintiff admitted that he was driving 35 miles per hour when he first saw the train some 50 or 60 feet ahead of him when he put on his brakes, but could not avoid striking the engine with such force as to derail three sets of drivers and the front wheels of the caboose. Plaintiff's truck caught fire and he was severely burned and bruised.
The accident occurred at about 5 a. m., August 14, 1952. On that morning plaintiff left Guthrie soon after midnight, driving a new 2 1/2 ton Ford truck tractor, pulling a 2 1/2 ton trailer loaded with vetch and alfalfa seed, bound for Little Rock, Arkansas. He was followed by another truck of the same employer and similarly loaded. They stopped at Okemah where both drivers and a girl friend of plaintiff ate breakfast together, and the other driver preceded plaintiff after they had stopped at Henryetta. Plaintiff testified that the highway jogged to the right before reaching the railroad crossing. He also testified that it was dark and that his lights picked up the train moving across the road when he got by the railroad crossing sign around the curve in the road. Actual measurements showed that the crossing sign was 248 feet west of the crossing.
The locomotive then moving across the highway was 69 feet long and over 16 feet high. The engine was struck with such force that the blow derailed part of its drivers and the caboose wheels, and also sprung or twisted the rails of the railroad in the highway pavement.
The slow movement of the train was no doubt due to the fact that the branch track of the railroad joined the main line a block and a half south of the crossing where a switch had to be thrown to reach the main line. This branch of the railroad ran about 8 miles to the north to a junction with the Okmulgee Northern and was used to switch cars from one main line to the other.
It was not disputed that defendant's engine had a headlight or backup light of equal power of the headlight, being a 250 watt light which would light up the right of way 1,000 feet ahead of the train as it backed to the south. The train crew all testified that this light was burning when the accident happened at the crossing and immediately prior thereto. They also testified that the engine bell had been ringing since a half mile north of the crossing and continued constantly and was ringing as they approached and crossed the highway; that the engine whistle was blown for this and two crossings north of this one, covering about one-half mile.
Four residents of the area near the crossing testified that the engine whistle was sounded as the engine approached the crossing and up to the time of the collision, some 374 feet to the south of the first crossing to the north. One of plaintiff's witnesses who lived at the first house south and west of the crossing testified that he heard the bell of the engine before he heard the crash, and one who lived north and west heard the long and short blast of the whistle before the collision.
Plaintiff testified that because traffic was light he drove with his lights 'down', at 35 or 40 miles per hour, even after he saw the sign that a railroad crossing was shead. The speed of the truck being about 3 1/2 times the speed of the train, explains why the engine men who saw the lights of plaintiff's truck some 250 or 350 feet west of the crossing did not think there would be any collision.
Plaintiff alleged the various elements of negligence on the part of defendant, including failure to sound whistle or bell, excessive speed, allowing obstructions to view of crossing to exist, failure to provide flagman, gates or automatic bell at crossing, failure to provide signal lights, and failure to install lights to make engine visible to highway travelers.
We have examined the exhibits of the plaintiff which show that the curve in the highway is so slight that plaintiff could have seen the highway crossing in ample time to bring his truck to a stop prior to reaching the railroad crossing had he used ordinary care in driving after he saw the crossing sign west of the crossing.
The defendant submits as its first proposition as follows:
'The trial court erred in submitting this case to the jury because there is no evidence of any negligence of the defendant, whose train had crossed a public highway in ample time ahead of plaintiff for him to stop, and was still backing through the crossing when struck by plaintiff.'
Our attention is called to the court's instruction No. 6, the first portion of which is approved by defendant. It instructs the jury as follows:
'You are instructed that the presence of a train or railroad cars on a public crossing is sufficient notice to the driver of the automobile on the highway of such obstruction, and the defendant railroad was under no duty to provide any other notice or signals of the presence of the train,'
However, the court added to he above instruction that:
'unless you further find that at the time and place of the accident there existed such unusual circumstances requiring additional precautions on the part of the railroad.'
The last quoted part of instruction No. 6 qualifies the first quoted portion of that instruction only where unusual circumstances exist, and defendant contends that no such unusual circumstances...
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