Missouri, K. & T. Ry. Co. v. Stanton

• Decision Date: 20 April 1920
• Docket Number: 9273.
• Citation: Missouri, K. & T. Ry. Co. v. Stanton, 78 Okla. 167, 189 P. 753, 1920 OK 180 (Okla. 1920)
• Parties: MISSOURI, K. & T. RY. CO. v. STANTON.
• Court: Oklahoma Supreme Court

189 P. 753

78 Okla. 167, 1920 OK 180

MISSOURI, K. & T. RY. CO. v. STANTON.

No. 9273.

Supreme Court of Oklahoma

April 20, 1920

Syllabus by the Court.

It cannot be declared as a matter of law that it is the duty of a person approaching a railroad track at a crossing to stop before going upon the track.It is his duty to look and listen, and to exercise such care as is commensurate with his surroundings to avoid the accident.There may be circumstances under which he should stop, but whether or not this is true depends upon the particular facts of the case and whether he should stop or not is a matter for the jury to determine.

Section 1430, Revised Laws of 1910, requires that a bell at least 30 pounds in weight, or a steam whistle, shall be placed upon each locomotive engine operated upon any railroad of this state, and that such bell shall be rung or such whistle sounded at the distance of at least 80 rods from the place where the railroad shall cross any other road or street, and that the railway company shall be liable for all damages which shall be sustained by any person by reason of the failure of the railroad company to comply with the requirements of the statute.And when a locomotive is so equipped and the bell is rung or the whistle sounded, as required by the statute, then the railway company has discharged the duty imposed upon it by the statute with reference to the ringing of the bell or the sounding of the whistle, whether such signal is heard or not.

The statute which requires a railroad company to give certain signals at highway crossing was not intended to furnish a standard by which to determine in every case whether or not such company had failed to discharge its duty in respect to giving sufficient warnings to the traveling public of the approach of its trains.It was intended rather to prescribe the minimum of care which must be observed in all cases.

Where a crossing is unusually dangerous because of its peculiar construction and situation, it is the duty of the railway company to exercise such care and take such precautions as the dangerous nature of the crossing requires.

Additional Syllabus by Editorial Staff.

Negligence is the "proximate cause" of the injury only when the injury is the natural and probable result of such negligence, and in the light of attendant circumstances ought to have been foreseen by a person of ordinary intelligence and prudence.

Error from District Court, Washington County; R. H. Hudson, Judge.

Action by Frank Stanton against the Missouri, Kansas & Texas Railway Company.Verdicts for plaintiff, and judgment thereon, and defendant brings error.Affirmed.

Clifford L. Jackson, of Muskogee, W. R. Allen, of Chicago, Ill., and M. D. Green, of Muskogee, for plaintiff in error.

Leahy & Macdonald, of Pawhuska, for defendant in error.

PITCHFORD J.

This action was commenced in the district court of Washington county, Okl., by Frank Stanton to recover damages on account of the death of his two sons who were killed by being struck by one of the trains of the railway company on a country highway crossing in Osage county, Okl.The suit is also for damages on account of the killing of two mules and the destruction of a wagon and harness.

The boys were driving the mules hitched to the wagon at the time of the accident.William Stanton was 19 years of age, and his brother, Ralph Stanton, 10 years of age.The two boys and one of the mules were instantly killed, the other mule died later, and the wagon was demolished.The accident occurred about 1 o'clock p. m. The track in the vicinity of the accident runs in a northeasterly and southwesterly direction the public road in a general east and west direction.The train was moving south at the time of the accident and was considerably late, some witnesses saying it was 40 minutes late, while others say it was an hour and 40 minutes late These boys had for some time lived in close proximity to the crossing, and we are to judge from the evidence were familiar with the same.The older boy was driving the team There was no one close enough to notice exactly what the boys did before reaching the crossing with reference to looking or listening for the train, but were casually noticed approaching by witnesses who were about 200 yards away.

The track approaching the crossing from the north, in which direction the train approached, is straight for a distance of 1,035 feet.Going further northward from the crossing and beyond this piece of straight track there is a slight curve to the west of one degree.The width of the right of way is 50 feet.The crossing whistling board for the crossing where the accident occurred is located 1,316 feet north of the crossing.The track is on a down grade for a mile or more approaching the crossing, and there is a natural elevation east of the track described as a mound or knoll.The highway along which the boys approached does not follow the section line to the track, but when it comes to this knoll turns southward and around the knoll and on to the section line on the track.The height of the knoll where the section line crosses it is from 12 to 14 feet, but at other places it is some higher, estimated by some of the witnesses about 25 feet at the highest point.The distance around the knoll from the point where the highway deflects to the railway crossing is 420 feet.In the construction of the railway the west portion of this knoll has been cut away.The elevation of the knoll begins at about 100 feet north of the crossing, and extends 650 feet north.The knoll itself measures 550 feet along the track.East of the knoll or mound the land is in cultivation between the railway and the public road, and there is some scattering timber near the right of way and along the creek or water course, but not on the right of way.

There is some variation in the testimony as to the density of this timber and to what extent and for what distance the railway tracks and the approaching train can be seen by a traveler on the highway.However, we are satisfied from the evidence that the train and tracks are visible at different points until the traveler reaches this knoll, which for a time completely obstructs the view.In the construction of the road a portion of the knoll was shaved off; further than this nothing was done to form any obstruction to the view which did not exist in the natural formation of the land.

The plaintiff contends that as the train approached the crossing it was traveling at a speed of 50 or 60 miles an hour, and that there was a failure to blow the whistle or ring the bell as prescribed by statute, and the evidence is largely directed along that line.On the other hand, the defendant company introduced several witnesses, who testified that the statutory signal was given and that the speed of the train did not exceed 40 miles an hour.The jury returned a verdict in favor of the plaintiff on account of the death of the older son for $10,000, on account of the death of the younger son for $4,000, and on account of the destruction of the wagon and team for $400.

The defendant assigns as error the refusal of the court to instruct the jury in accordance with instructions as requested by the defendant, and, second, error in giving to the jury certain instructions.

It is the contention of the railway company that under the facts as developed in the case the giving of the signals of the approach of the train as required by the statutes is the measure of duty which the railway company owed to these boys approaching this crossing.We cannot agree with this contention of defendant.Section 1430, R. L. 1910, provides that a bell of at least 30 pounds weight, or a steam whistle, shall be placed upon each locomotive engine operated upon any railroad of this state; that such bell shall be rung or such whistle sounded at the distance of at least 80 rods from the place where such railroad shall cross any other road or street, and that the railway company shall be liable for all damages which shall be sustained by any person by reason of the failure of the railroad company to comply with the requirements of the statute.This statutory duty is required as to all crossings, and when a locomotive is equipped with such bell or whistle and the bell is rung or the whistle sounded as required by the statute upon the approach of the train to a railroad crossing, then the railway company has discharged the duty imposed upon it by the statute with reference to the ringing of a bell or the sounding of a whistle.This is true whether such signal is heard or not.The statute does not require the giving of such a signal of the approach of the train as will enable a person absolutely to ascertain its approach or avoid being injured.

The evidence is sharply conflicting as to whether or not the bell was rung or the whistle sounded.Some witnesses on the part of the plaintiff, standing 200 yards west of the crossing and in plain view of the same, testified that there was no whistle sounded for the crossing where the accident occurred, and that the bell was not rung.On the other hand, the engineer, the fireman, and other members of the train crew, together with other parties, testified that the crossing whistle was sounded at the whistling board for the crossing, and, further, there is some evidence that the bell was rung.This then became a matter entirely for the jury, and it was for the jury to say whether or not the signals had been given.

The defendant complains that the court erred in refusing to give the instructions requested by the defendant to the effect that, if the conditions surrounding the crossing and the passage of a train thereon were such as to require a traveler in the exercise of reasonable care to...