Kurn v. Jones
| Citation | 101 P.2d 242,187 Okla. 94,1940 OK 190 |
| Decision Date | 09 April 1940 |
| Docket Number | 28839. |
| Parties | KURN et al. v. JONES. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. To charge railroad with negligence in leaving train at night across highway without lights or other signals to disclose its presence, motorist injured must show that trainmen exercising reasonable care, should know that, because of darkness, cars were such obstruction that people traveling in automobiles properly equipped with lights and carefully operated at reasonable rate of speed would be likely to come into collision with them.
2. Trainmen in the employ of a railroad company are not required to anticipate that a motorist driving along a highway and knowingly approaching a railroad crossing will drive his automobile in such a manner as will not permit him to avoid collision with a freight car standing upon the crossing. Sec 14, ch. 113, S.L.1933, 47 Okl.St.Ann. § 92.
3. Evidence examined, and held to be insufficient to show primary negligence on the part of defendant.
Appeal from District Court, McCurtain County; Geo. R. Childers Judge.
Action by Joe Jones against J. M. Kurn and John G. Lonsdale trustees of the St. Louis-San Francisco Railway Company, to recover for damages to plaintiff's automobile when he drove it into a flat car which was part of a freight train standing on railroad track at highway crossing. From a judgment in favor of the plaintiff, the defendants appeal.
Judgment reversed.
J. W. Jamison, of St. Louis, Mo., and Cruce, Satterfield & Grigsby and Ben Franklin, all of Oklahoma City, for plaintiffs in error.
Bascom Coker, of Idabel, and Newman & Phillips, of Durant, for defendant in error.
M. D. Green, of Oklahoma City, for Missouri, K. & T. R. Co., amicus curiae.
W. R. Bleakmore, of Oklahoma City, for Frank O. Lowden, James E. Gorman and Joseph B. Fleming, trustees, Chicago, R.I. & P. R. Co., amicus curiae.
Rainey, Flynn, Green & Anderson, of Oklahoma City, for Atchison, T. & S. F. R. Co., amici curiae.
Plaintiff drove his automobile against defendant's freight car standing on the railroad track at a highway crossing and brought this action to recover for the resulting damages to said automobile. Judgment was for plaintiff, and defendant appeals.
The accident occurred about 10 p. m. Plaintiff was aware of the presence of the freight train. As he approached the crossing he saw a box car on each side of the highway and assumed that the train had been cut to permit travel to continue across the railroad, but he failed to notice that the crossing was blocked by a flat car coupled between the two box cars aforesaid. He drove his automobile against the side of the flat car and the damages resulted.
The tracks were elevated above the level of the highway, and in ascending the grade the beams from the headlights of plaintiff's car shone above the flat car and plaintiff was unable to see the latter until he was within 6 or 7 feet of the same. He approached the tracks at a speed of 3 to 7 miles per hour. It is also shown that the brakes and lights of plaintiff's car were in good repair.
Defendant gave no warning of the presence of the flat car.
The principal question is whether the foregoing facts constituted sufficient proof of primary negligence on the part of defendant to warrant submission of the issue to the jury.
Plaintiff says that defendant was negligent in not maintaining a flagman or a signal of some kind to warn the public that the crossing was blocked, and that defendant negligently allowed the flat car to stand across the highway with a box car standing on either side so that an automobilist driving up the steep incline approaching the tracks would reasonably believe that the train had been cut between the two box cars leaving a passageway for the traveling public.
The majority rule governing cases of this character would charge the defendant with primary negligence if its train employees in the exercise of reasonable care should know that because of the surrounding circumstances the freight cars constituted such an obstruction that people traveling in properly equipped and carefully operated automobiles would be likely to collide with them if warning of some kind was not given. See annotation, 99 A.L.R. 1454. In the case of St. Louis-San Francisco Ry. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A.L.R. 1110, the rule is stated as follows: "To charge railroad with negligence in leaving train at night across highway without lights or other signals to disclose its presence, motorist injured must show that trainmen, exercising reasonable care, should know that, because of darkness, cars were such obstruction that people traveling in automobiles properly equipped with lights and carefully operated at reasonable rate of speed would be likely to come into collision with them."
The burden in such case is upon plaintiff to establish a set of circumstances that would warrant the jury's consideration of the question of reasonable care on the part of the trainmen. If the court is of the opinion that reasonable men might differ as to whether the trainmen in the exercise of reasonable care might have anticipated the accident, then the jury should be allowed to decide the questions of primary negligence and of proximate cause.
The above rule applies only in those jurisdictions where statutes regulate neither the railroad nor the motorist in such cases. In the instant case the defendant was within its legal rights in blocking the highway with the freight car. The presence of the train standing on the track did not constitute negligence. The Guthrie case, above, recognizes that rule. We have no statute defining the duties of the railroad company in cases of...
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