Midland Valley R. Co. v. Townes

• Decision Date: 01 December 1936
• Docket Number: Case Number: 25205
• Citation: 64 P.2d 712,1936 OK 749,179 Okla. 136
• Parties: MIDLAND VALLEY R. CO. v. TOWNES
• Court: Oklahoma Supreme Court

1936 OK 749

64 P.2d 712

179 Okla. 136

MIDLAND VALLEY R. CO. v. TOWNES

Case Number: 25205

Supreme Court of Oklahoma

Decided: December 1, 1936

Syllabus

¶0 1. RAILROADS - STREET CROSSINGS - Duty to Maintain in Reasonably Safe Condition.

Although a public street, crossing a railway right of way, has never been officially dedicated as such, if it has been used continously by the public for several years, and has been treated by the public and by the railway company as a public highway, it will be presumed to be a public highway, and the railway company owes the duty to the public to maintain the crossing over said right of way in a reasonably safe condition. (St. L., I. M. & S. R. Co. v. O'Connor, 43 Okla. 268, 142 P. 1111; sec. 11963, O. S. 1931.).

2. SAME - Evidence of Muddy Condition Causing Automobile to Be Mired at Crossing Where Struck by Train Held to Sustain Finding of Primary Negligence and Causal Connection with Injury.

Evidence that a railway company permitted crossing and right of way to become so impassable from mud and mud holes that an automobile became mired in the mud at such crossing and was unable to move in either directions, by reason of which the automobile and its occupants were struck by defendant's train, held sufficient to sustain finding of primary negligence and causal connection with the injury.

3. SAME - Question of Contributory Negligence Held Properly Submitted to Jury.

Trial court did not err in permitting question of contributory negligence to go to the jury, where evidence was presented on that issue, or where an inference of contributory negligence or the absence thereof could reasonably be inferred from the evidence.

4. DEATH - LIMITATION OF ACTIONS - Right to File New Action Within Year After Dismissal Without Prejudice by Plaintiff.

An action commenced within the period of limitation in the state court, then removed to the federal court by the defendant, and subsequently dismissed without prejudice by the plaintiff after the running of limitations, will serve as the basis for the filing of a new action in the state courts within one year after said dismissal, under section 106, O. S. 1931.

5. SAME - ACTION FOR DEATH OF HUSBAND - Right of Administrator to File New Action Within Year After Dismissal of Action by Wife.

Where a widow institutes an action for the wrongful death of her husband, under section 571, O. S. 1931, and dismisses same without prejudice after the running of statute of limitations, and where the substance of an action filed under section 570, O. S. 1931, within a year thereafter by the administrator of the husband's estate is in all respects and theories the same as the former action by the widow, the latter action is not barred by the statutes of limitation. (Section 106, O. S. 1931.)

6. JUDGMENT - Action Against Railroad and Roadmaster for Negligence in Maintaining Public Crossing in Unsafe Condition - Acquittance if Roadmaster not Necessarily Res Judicata as Regards Liability of Railroad.

In an action for the negligence of a railway company in maintaining its public crossing in an unsafe condition in violation of its statutory duties, the recovery is not necessarily under the theory of respondeat superior, and if the roadmaster is joined as a party defendant and no negligence of his own is shown, but only a nonfeasance of his duty to his master, and the trial court sustains his demurrer to plaintiff's evidence, liability of the railway company for violation of its own statutory duty may be adjudged if the facts so warrant, and the acquittance of the roadmaster is not necessarily res judicata as regards the liability of said railway company.

7. APPEAL AND ERROR - Remarks of Counsel Held not of Nature Requiring Reversal.

Remarks of prevailing counsel during trial examined, and held, not of such nature as to require a reversal, particularly in view of inciting remarks made by opposing counsel.

Appeal from District Court, Tulsa County; S.J. Clendinning, Judge.

Action by H. Townes, administrator of the estate of F.C. Warren, deceased, against the Midland Valley Railroad Company for wrongful death of deceased. Judgment for plaintiff. Defendant appeals. Affirmed.

Hamilton & Howard, for plaintiff in error.

C.B. Stuart, E.J. Doerner, and B.A. Hamilton, for defendant in error.

PHELPS, J.F.C.

¶1 Warren was struck and killed by the defendant's train at a railway crossing. His administrator, plaintiff in this action, recovered a judgment therefor, and the defendant railway company appeals.

¶2 This accident occurred in the outskirts of the city of Tulsa.

¶3 The defendant's single railway track ran north and south, in the middle of its right of way, which was 100 feet wide. Ute street lay east and west, and intersected the right of way at right angles. It was at this intersection where Warren was killed. Negligence in the operation of the train is not alleged, and the specific negligence relied upon, and forming the basis of recovery, was the defendant's failure to properly construct and maintain the crossing across its entire right of way in a reasonably safe condition for the use of the public.

¶4 There was evidence tending to prove that approaching the tracks from the west, and proceeding eastward, a slight incline led up the side of the embankment forming the roadbed of the track, and, upon crossing the track, the grade immediately declined sharply. No part of the roadway across the right of way was paved or improved. The railway rails stood up some three or four inches above the ground between them. It was muddy between the rails and no planks or boards were placed there or on the sides of the inclines leading up to the rails on the outside. The east decline (from the east rail downward) was muddy and slick, and from the east ends of the crossties, extending on eastward throughout the remainder of the right of way crossing, was described by several witnesses as being just a "bowl of mud." However, there was a culvert extending north and south across the traveled portion of the right of way, parallel with the tracks and east thereof, and it was higher than the roadway between it and the track, though not higher than the track. Between the east rail and the culvert the mud and mud holes were described as being a foot or more deep.

¶5 Defendant's witnesses estimated the distance between the east rail and the culvert to be about 20 feet, while witnesses for plaintiff estimated it to be as little as 12 or 14 feet.

¶6 Plaintiff's deceased and one J.J. Walker were proceeding east on Ute street, in an automobile owned and being driven by Walker. A man by the name of Pierce was also riding in the car.

¶7 All three of them were agents of an insurance company, and each had a separate district out in that part of town in which to collect insurance premiums the task in which they were engaged at the time. They crossed the railway track, and when they arrived at a place just east of the culvert, it was decided that they could not proceed further, due to the mud, and they let Pierce out and he proceeded on foot into his territory. He did not see the accident. We next find the car, with the two men in it, still headed east, but with the rear end thereof near the east rail of the tracks. The inference is that they backed the car westward across the culvert, and between the culvert and the east rail. Now comes a sharp conflict in the evidence. The engineer of the train then approaching the crossing from the south testified for the defendant that the automobile slowly and steadily backed into the path of the train, without stopping or hesitating. But on behalf of the plaintiff several other eyewitnesses testified that when they saw the car it was not backing at all, but that it was "stuck" in the mudhole close to the east rail, on the cast of said rail, with the rear of said automobile sticking back above or near the rail. They testified, further, that the rear wheels were spinning and slipping, and that the car was rocking and the men in it were working as if engaged in an effort to get out of the hole, and that just before the collision plaintiff's deceased was attempting to get out of the car. Evidently the jury accepted the narration of plaintiff's witnesses, and we are bound by that finding. Inasmuch as the automobile was of about the same length as the distance between the east rail and the culvert, or possibly but little shorter, and the culvert and track both were higher than the intervening muddy street, it could quite plausibly be argued that the automobile was caught there and could not be moved in either direction in time to avoid the collision. The oncoming northbound train struck the automobile and carried it 175 feet along the track, killing both occupants.

¶8 Section 11963, O. S. 1931 (sec. 5533, C. O. S. 1921), places upon every railroad company doing business in this state the mandatory duty of constructing and maintaining crossings over its tracks, roadbeds, and rights of way over which any public highway may run, and requires that such crossings shall be unobstructed and in a good condition for the use of the public.

¶9 This means the crossing over the entire width of the railway right of way, not just the track. C., R.I. & P. R. Co. v. Taylor, 79 Okla. 142, 192 P. 349. There can be no question about this being a public highway within the meaning of the statute. Although the railway right of way itself was not technically incorporated into the city limits, and the street at that particular point had not been formally dedicated to public use, such had occurred and was true as to the street where it entered the right of way on the east and on the west.

¶10 The additions bordering both sides of the highway were within the city limits. The culvert had been constructed some years before, by residents living nearby, with the knowledge and consent of the defendant and with material furnished them by the defendant. Residences were on both sides of the right of way....