Missouri-Kansas-Texas R. Co. v. Hayes

• Decision Date: 16 July 1968
• Docket Number: No. 42107,MISSOURI-KANSAS-TEXAS,42107
• Citation: 445 P.2d 254
• Parties: RAILROAD COMPANY, a corporation, and H. S. Whitlock, an individual, Plaintiffs in Error, v. Kim HAYES, by and through John Hayes, her father and next friend, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 254

445 P.2d 254

1968 OK 106

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a corporation, and H. S. Whitlock, an individual, Plaintiffs in Error, v. Kim HAYES, by and through John Hayes, her father and next friend, Defendant in Error.

No. 42107.

Supreme Court of Oklahoma.

July 16, 1968.

Rehearing Denied Sept. 24, 1968.

Syllabus by the Court

1. Ordinarily, the presence of a train on a crossing, whether moving or stationary, is sufficient notice to the driver of a vehicle on the highway of such obstruction, and, in the absence of unusual circumstances, the operating railroad company is not under any duty to provide any other notice or warning. However, where, in an action for damages for personal injuries suffered by the occupant of an automobile which collided with a train at a crossing, the evidence indicates that the crossing was an extra-hazardous one, and the auto and the train arrived at it almost simultaneously, this rule may not apply.

2. Where, in such a case, the evidence tends to show that the crossing, in view of the geographical configuration of its vicinity, the presence of obstructions to motorists' view of approaching trains, the amount of travel over the crossing, etc., is an extra-hazardous one, such evidence may be sufficient to submit, for the jury's consideration, the issue of whether, or not, the defendant railroad company was obliged to provide more than the statutory warnings, in order to discharge its duty of reasonable care, even where the obstructions to the motorists' view are not on the railroad's right of way.

3. Where defendants seek reversal of a judgment obtained against them on the ground of admission of incompetent evidence, they have the burden of showing that such evidence so admitted over their objection was not only incompetent, but prejudicial, and, on their failure to do so, this court will not reverse the judgment on such ground.

4. An erroneous instruction is not cause for reversal, unless it is shown to have probably misguided the jury; otherwise it is harmless.

5. Oral remarks of trial judges in announcing orders overruling motions for new trials, when incorporated in the journal entries of such orders, may be considered to explain them, or to show what considerations influenced their formulation, but they may not be considered to vary, or impeach, them.

6. Where lump-sum verdict of $32,500.00 for damages on account of personal injuries plaintiff's 6 1/2-year-old daughter suffered in an auto-train collision, was claimed, on appeal, to be excessive, principally because, according to the expert, medical, evidence, the chances of the child suffering future ill effects therefrom, were uncertain, the record did not support this claim, in view of the child's past pain and suffering from multiple injuries, her brain condition, and permanent loss of an estimated one-sixth of her liver.

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

Action by the father, and next friend, of his minor daughter, who was injured in an auto train collision, against the railroad company, and the train's engineer, for damages on account of personal injuries she suffered as a result of said collision. After verdict and judgment for plaintiff, and the overruling of defendants' motions for a new trial, they appeal. Affirmed.

E. J. Doerner and Harry D. Moreland, of Doerner, Stuart, Moreland, Saunders & Daniel, Tulsa, for plaintiffs in error.

Baker & Baker, Tulsa, for defendant in error.

BLACKBIRD, Justice.

This is a companion case to Cause No. 41767, styled 'Missouri-Kansas-Texas Railroad Company, a corporation, and H. S. Whitlock, an individual, Plaintiffs in Error, vs. Laurie Hayes, by and through John Hayes, her father and next friend, Defendant in Error', Okl., 445 P.2d 779.

In the present action, the same father, as plaintiff, sued the same plaintiffs in error, as defendants, for damages on account of personal injuries another of his minor children, Kim Hayes, suffered in the same auto-train collision. Kim, like her sister, Laurie, on whose behalf the cited action was instituted, was riding in the back seat of the 1959 Chevrolet Sedan driven by Jimmy Geren, when it collided with the Railroad Company's train, at the same crossing near Broken Arrow.

This case was tried before a jury approximately six months after the trial of Cause No. 41767, supra, and, as did that trial, resulted in a verdict and judgment for the plaintiff.

The first three propositions, and the arguments thereunder, advanced for reversal by plaintiffs in error, hereinafter referred to as 'defendants', are in no material respect different from those they presented in Cause No. 41767, supra. There were a few differences in the evidence introduced in the two cases, one of them being that, in this case, no member of the defendant railroad company's train crew directly, or unequivocally, admitted that the crossing involved was a very dangerous one, or more hazardous than many others. However, since there was no material difference in the evidence of the two cases concerning the physical characteristics of the crossing, and the facts surrounding the collision, and we think the evidence here was ample to support the jury's evident conclusion that the crossing was an extra hazardous one, we find none of defendants' arguments under their first three propositions sufficient to justify reversal of the trial court's judgment, for the same reasons that we found substantially the same arguments insufficient in Cause No. 41767, supra. Therefore, in view of the foregoing, we find it unnecessary to repeat, or add to, what we there said, either, by way of describing the evidence, or of discussing the rules and/or law applicable thereto. Accordingly, we hereby adopt what was therein said and held, as controlling here on defendants' first three propositions, and the arguments advanced thereunder.

In a fourth proposition presented in this appeal, defendants urge that the verdict in this case 'was clearly excessive and clearly indicates that it is the result of passion or prejudice.'

In plaintiff's petition, he alleged, among other things, in substance, that Kim, who, at the time of the collision was approximately 6 1/2 years old, received severe head injuries, which rendered her unconscious 'for many days' and resulted in permanent brain damage; that she also received injuries to the chest, arms, legs and in the area of her abdomen, which tore and ruptured her liver and made abdominal surgery necessary, resulting in permanent damage to that organ; and, that she will be permanently disabled and required to undergo future medical treatment. In his amended petition, plaintiff prayed for damages in the total sum of $87,450.00 for these injuries. The jury's verdict awarded him the lump sum of $32,500.00 and his costs in the action.

The evidence introduced at the trial failed to unequivocally show that Kim will be permanently disabled, or will Certainly require future medical treatment. Her mother testified, in substance, that, when Kim was taken to the hospital, on the day of the accident, she was bruised, and her face was so swollen that 'you couldn't even tell where her nose, eyes or anything was * * * her mouth was full of blood and * * * (she) had blood in her hair * * * (and) all the hide burned off of her forehead up into her hair line.' Mrs. Hayes further testified that Kim was in an intensive care unit of the Hospital 'about a week';...