Lusk v. Pugh

• Decision Date: 13 June 1916
• Docket Number: Case Number: 7290
• Citation: Lusk v. Pugh, 1916 OK 668, 71 Okla. 182, 159 P. 855 (Okla. 1916)
• Parties: LUSK ET AL. v. PUGH.
• Court: Oklahoma Supreme Court

1916 OK 668

159 P. 855

71 Okla. 182

LUSK ET AL. v. PUGH.

Case Number: 7290

Supreme Court of Oklahoma

Decided: June 13, 1916

Syllabus by the Court.

¶0 In order to give a right of action to an individual for the violation of an ordinance of a city requiring a railroad company to constantly keep a flagman at a street crossing, a causal connection between the failure of the company to comply with such ordinance and the injury received must be shown.

The railroad company has the right to make all usual noises incident to the moving of its cars, and a person, in a buggy, at a public crossing, whose horse becomes frightened at the noise of the movement of the cars, runs away, and such person is injured, has no cause of action against the railway company, unless the acts of its servants who caused the noise which frightened the animal were unnecessarily made, under such circumstances as to constitute lack of ordinary care, or such noise was recklessly or wantonly made, or done to frighten the horse, and done in the discharge of such servants' business for the company.

The evidence in this case carefully examined, and found not sufficient to sustain the verdict rendered.

Additional Syllabus by Editorial Staff.

The "proximate cause" of an event must be understood to be that which, in the natural and continuous sequence, unbroken by any independent cause, produces that event, and without which that event would not have occurred.

W. F. Evans, of St. Louis, Mo., and R. A. Klienschmidt and J. H. Grant, both of Oklahoma City, for plaintiffs in error.

Charles Mitschrich and J. A. Lenertz, both of Lawton, for defendant in error.

COLLIER, C.

¶1 This is an action brought by the defendant in error against the plaintiffs in error to recover for personal injuries sustained by the plaintiff at a crossing in the city of Lawton, Okla. Hereinafter the parties will be designated as they were in the trial court.

¶2 The negligence averred in the petition is that said defendants negligently and carelessly ran one of the locomotives used by them in operating said railroad at a high rate of speed into and against a string of cars on the left-hand side of plaintiff and on the west side of said highway, and with a great amount of noise, kicked, pushed, and bumped said cars up to, and upon, and across said highway at said crossing as aforesaid, and negligently and carelessly omitted, while approaching said crossing, to give any signal by ringing a bell or sounding the steam whistle, or otherwise; that said defendants had a flagman at said crossing, as provided for in the city ordinance as above set out, but said flagman was not at his post of duty, and was not in sight of plaintiff, and carelessly failed to give plaintiff any signal either to stop or proceed, or any warning or signal of the approach of said engine or cars, or of the danger of the horse becoming frightened that might be occasioned by the sudden bumping together of said engine and cars as aforesaid, by reason whereof plaintiff was unaware of the approach of said locomotive and string of cars as aforesaid; that solely by reason of defendants' said negligence and the negligence of said flagman in being absent from his post of duty and in failing to signal to plaintiff approaching danger, and in failing to signal him to stop, and by not remaining constantly on duty as required by the ordinance of the city of Lawton, as above set out, and without any fault or negligence on the part of the plaintiff, said violent and sudden kicking and bumping of the cars and locomotive as aforesaid frightened and scared the plaintiff's horse. In short, the allegations of negligence consisted of the absence of the flagman from his post of duty and the noise incident to the switching of said cars.

¶3 The material evidence in the case shows that the tracks of the St. Louis & San Francisco Railway Company run practically east and west through the city of Lawton, and intersect Sixth street at right angles. In addition to the main track there are three additional tracks that intersect Sixth street, paralleling the main line and south of the main line. On the west side of the street there is no sidewalk, and it was usual and customary for cars to be stored on the side tracks up to the sidewalk line, and sometimes beyond that line. The main traveled portion of Sixth street at the crossing is about 40 feet wide. The defendants maintain gates and a watchman at this crossing.

¶4 On the date plaintiff was injured, he approached the crossing from the south, riding in a buggy drawn by one horse. A train crew was making up a freight train on the main line, and had placed one car east of Sixth street, with the west end of the car extending out across the sidewalk but not extending into any part of the traveled portion of Sixth street. Two other cars were standing west of the traveled portion of Sixth street, on the main line, with the east end of the cars about on a line with the sidewalk, if the same had extended across the railroad tracks. Another two cars were kicked down and coupled onto the two stationary cars west of Sixth street. Just before this coupling was made, plaintiff had reached a point 15 or 20 feet south of the south tracts, and had stopped his horse for the purpose of looking and listening for approaching trains. Just before the coupling of the last car was made, plaintiff started forward toward the tracks, and as the cars were coupled together, his horse became frightened at the noise and stopped suddenly, throwing plaintiff and his wife and child onto the dashboard, and throwing his wife out of the buggy. The horse then turned to the right, circled around and ran back down Sixth street in the direction from which they had come. As the buggy was being turned, plaintiff was thrown out, and sustained the injuries described in the petition.

¶5 The evidence further shows that by an ordinance of the city of Lawton the railroad company was required to at all times keep a flagman at said crossing. Just before and at the time said accident occurred, said flagman at the said Sixth street crossing was in the shelter house, which was located along defendants' north track and just east of the sidewalk on the east side of said crossing.

¶6 There was also evidence tending to support the averments of the petition as to the injuries sustained by the plaintiff. The evidence is in conflict as to the volume and character of noise made by the defendant in coupling up said cars.

¶7 Upon the conclusion of plaintiff's testimony, defendants demurred to the evidence of plaintiff, which demurrer was overruled and duly excepted to.

¶8 Among other instructions, the court gave the following instruction No. 6:

"And you are instructed, gentlemen of the jury, that it is the duty of a railroad company to observe such provisions of the city ordinances providing for the presence of flagmen at its railroad

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