Missouri, K. & T. Ry. Co. v. Flowers
| Decision Date | 05 March 1940 |
| Docket Number | 28743. |
| Parties | MISSOURI, K. & T. RY. CO. v. FLOWERS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied April 30, 1940.
Syllabus by the Court.
1. In an action against a railroad company to recover damages to plaintiff's automobile resulting from a collision with defendant's train at a highway crossing, and the charge of negligence is based upon defendant's failure to sound a warning as provided by section 11961, O.S.1931, 66 Okl.St.Ann. § 126, the testimony of the driver of the automobile that he was aware of the railway crossing, but was giving no attention to whether a train was near, negatives his testimony that he heard no warning signal.
2. The presence of a railroad track, on which a train may at any time pass, is notice of danger to such an extent that it is the duty of a person about to cross the track on a public highway to exercise caution in so doing, and to look and listen before crossing, and it is negligence to omit such ordinary precaution.
Appeal from District Court, Beckham County; T. R. Wise, Judge.
Action by W. H. Flowers against the Missouri, Kansas & Texas Railway Company for damages to plaintiff's truck. Judgment for plaintiff, and defendant appeals.
Reversed.
E. G McComas, of Elk City, and H. M. Thacker, of Mangum, for plaintiff in error.
H. C Ivester, of Sayre, for defendant in error.
This is an action to recover for damages to plaintiff's truck resulting from a collision with defendant's freight cars. Defendant appeals from a judgment rendered on verdict for plaintiff.
Defendant says there was no evidence produced to indicate actionable negligence on its part, and that the evidence on the part of plaintiff shows that the accident was the proximate result of the latter's own negligence. Error is charged to the court's action in overruling defendant's demurrer to the evidence and to the denial of its request for an instructed verdict.
The evidence on the part of plaintiff was that the accident occurred in the outskirts of the city of Mangum where the highway crosses the railroad switches of the defendant. The truck was being driven by one Cecil Jackson, plaintiff's agent, and was carrying a reasonably heavy load. Jackson approached the tracks aforesaid on a down grade and was going about 25 or 30 miles per hour; a small building standing near the crossing and belonging to a gin company obstructed his view; when he had approached to a distance of 100 feet or more from the switch some freight cars were pushed across the highway directly in his path. He attempted to avoid crashing into the side of the cars by turning his truck toward an open space between the aforesaid building and the tracks, but was unable to properly make the turn. As a result he crashed into said building, thence into one of the defendant's freight cars. These impacts knocked the building from its foundation and pushed the freight car off the tracks and tore up one steel rail. The truck was demolished.
And further, Cecil Jackson knew the railway was there; he had crossed it many times over a period of years. He testified that at the time in question he was not thinking of trains as he approached the tracks, and had speeded up the truck after crossing another railroad some 500 feet from the defendant's tracks. He heard no locomotive bell, no whistle; saw no flagman or other warning of any kind before he saw the freight cars across the highway.
In view of the foregoing evidence the trial court should have instructed a verdict for defendant.
The defendant had a perfect legal right to push its freight cars along their tracks and across the highway. In so doing it violated no legal duty toward the driver of the truck...
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