Lowden v. Bowles

• Decision Date: 01 October 1940
• Docket Number: 29514.
• Parties: LOWDEN et al. v. BOWLES et ux.
• Court: Oklahoma Supreme Court

105 P.2d 1061

188 Okla. 35, 1940 OK 404

LOWDEN et al. v. BOWLES et ux.

No. 29514.

Supreme Court of Oklahoma

October 1, 1940

As Amended Oct. 3, 1940.

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. 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.

Appeal from District Court, Jefferson County; Cham Jones, Judge.

Action by Henry Bowles and wife, Mrs. Henry Bowles, against Frank O Lowden, James E. Gorman, and Joseph B. Fleming, trustees of the estate of the Chicago, Rock Island & Pacific Railway Company, to recover for the death of plaintiffs' daughter, allegedly as result of the negligence of the defendants. From an adverse judgment, defendants appeal.

Judgment reversed, and cause remanded, with directions.

W. R Bleakmore, W. L. Farmer, John Barry, and Robert E. Lee, all of Oklahoma City, for plaintiffs in error.

Harley Ivy, of Waurika, Warren B. Phillips, of Corpus Christi, Tex Robert Williamson, of Tyler, Tex., Travis Smith, of Denver City, Tex., and Nat Gentry, Jr., of Tyler, Tex., for defendants in error.

BAYLESS Chief Justice.

Henry Bowles and wife, parents of Margie Bowles, deceased, brought an action in the District Court of Jefferson County against Frank O. Lowden et al., trustees of the estate of C., R.I. & P. Ry. Co., a corporation, to recover damages for the death of their daughter, alleged to have resulted from the negligence of the company. The company appeals from a verdict of the jury in favor of plaintiffs.

Nine young people were in a 1933 Chevrolet Sedan, and stopped at a filling station in Waurika for gasoline. The driver of the car left his engine running while being served, his reason therefor being that the engine was hard to start. When the car had been serviced, the driver drove East and traveled at a rate of speed estimated by various witnesses to be from 30 to 60 miles per hour. About 800 or 900 feet East of the filling station was a crossing of the defendants' tracks and the highway, and there was a freight train obstructing the crossing. The car was driven into the side of, and under, one of the freight cars, and Margie Bowles was killed. This happened about 10:30 or 11:00 o'clock p. m.

It is alleged that the defendants were negligent in allowing the train to obstruct the crossing, and in not having signals, lights, warning devices or employees to warn the public, using the highway, of the presence of the train.

Since this case was appealed, this court has had occasion to give consideration to the liability of a railway company for injuries to persons injured as the result of automobiles colliding with a standing train at a highway crossing. Kurn v. Jones, 187 Okl. 93, 101 P.2d 242, 243.

The rule stated therein is:

"'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."

See the annotation in 99 A.L.R. 1454, and the decisions discussed.

The plaintiffs endeavored to show a set of circumstances in this instance that would cause the employees of the defendants to anticipate,...