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

• Court: Oklahoma Supreme Court
• Writing for the Court: BLACKBIRD
• Citation: Missouri-Kansas-Texas R. Co. v. Hayes, 445 P.2d 249 (Okla. 1968)
• Decision Date: 16 July 1968
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 41767,41767
• Parties: RAILROAD COMPANY, a Corporation, and H. S. Whitlock, as Individual, Plaintiffs in Error, v. John HAYES, father and next friend of Laurie Hayes, a minor, seven years of age, Defendant in Error.

Page 249

445 P.2d 249

1968 OK 105

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, and H. S. Whitlock, as Individual, Plaintiffs in Error, v. John HAYES, father and next friend of Laurie Hayes, a minor seven years of age, Defendant in Error.

No. 41767.

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 station ary, 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 indicated 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.

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' motion for a new trial, they appeal. Affirmed.

Doerner, Stuart, Moreland, Saunders & Daniel, Tulsa, for plaintiffs in error.

Baker & Baker, Tulsa, for defendant in error.

BLACKBIRD, Justice.

This appeal involves an action by a father for damages on account of personal injuries his minor daughter, Laurie Hayes, suffered in a railroad crossing collision between a 1959 Chevrolet Sedan, driven by a 17-year-old boy named Jimmy Green, and a freight train belonging to the plaintiff in error, Missouri-Kansas-Texas Railroad Company. The train's engineer, H. S. Whitlock, is the other plaintiff in error.

The location of the accident was the place where the Railroad Company's branch line, extending from Muskogee to Sand Springs, crosses Lynn Lane Road, about a mile southeast of the Railroad's Broken Arrow Station, and outside the latter City's boundaries.

Laurie Hayes was one of three children riding in the Chevrolet's back seat. The driver and another occupant of the auto's front seat were killed instantly, when the auto, traveling south on black-topped Lynn Lane Road, struck the first of the train's two diesel-engined locomotives, about seven feet to the rear of its front end. The train was traveling in a southeasterly direction toward Muskogee. The impact of the collision demolished the front end of the auto and the momentum of the train, before it was stopped, swept the auto to a point about 12 feet east of Lynn Lane Road's right-of-way. When the auto came to rest, it was facing in a northwesterly direction, and damage to its rear indicated that the collision's first impact had turned the auto around, with its rear end forward, and it had then bounced back against the train, before reaching its final resting place.

When Laurie was removed from the wrecked automobile and taken to hospital in Tulsa, she was unconscious, nad remained so for many days thereafter. The injuries she suffered from the accident were a broken leg, a broken jaw, the loss of several teeth, a ruptured liver, head injuries and others unnecessary to describe.

Alleging that the collision was caused by the negligence of plaintiffs in error, hereinafter referred to by their trial court desingnations referred to by their trial court designations and next friend, hereinafter referred to as 'plaintiff', sought damages against said defendants in the total sum of $127,700.00. Trial of the cause before a jury resulted in a verdict for plaintiff in the sum of $34,800.00; and judgment was entered accordingly.

In their present appeal, defendants' arguments for reversal are advanced under three propositions. Under the first one, they contend, in substance, that no cause of action was established in plaintiff's favor against them, and therefore the trial court erred in overruling their motions for directed verdicts, because the evidence showed that the sole cause of the collision was the negligence of the Chevrolet's driver. They cite testimony given by the defendant, Whitlock, as 'undisputed and uncontradicted' evidence, that the train was traveling at a speed of 15 to 20 miles per hour, and other testimony by George Stratton, the Highway Patrolman, who investigated the accident, and C. J. Halley, an Assistant Professor of Physics at Oklahoma Baptist University, as 'undisputed and uncontradicted evidence' that the auto was traveling 'somewhere between 45 and 70 miles per hour.'

Defendants also refer to two photographs, introduced in evidence at the trial, and designated plaintiff's Exhibit 9, and defendants' Exhibit 2, as showing that the freight train's first locomotive was already occupying the crossing when the auto arrived there. It seems to be defendants' position, in their initial brief, that, because the locomotive was already crossing Lynn Lane Road, when the auto hit it, and the testimony of his father indicated that Jimmy Geren had traveled that road so much he knew exactly where the crossing was, it was said driver's duty to stop the Chevrolet before colliding with the locomotive. A pertinent part of plaintiff's answer to defendants' argument is that the arrival of the train, and the arrival of the auto, at the crossing, were so nearly simultaneous in point of time, and the crossing was so hazardous to motorists that, under Atchison, T. & S.F. Ry. Co. v. Templar, 204 Okl. 406, 230 P.2d 907, the fact that the locomotive was already almost completely across the highway when the auto hit it, did not relieve the defendant railroad company from its duty to warn the auto's driver of the train's approach.

In their reply brief, defendants concede that it is only 'in the absence of unusual circumstances' rendering a railroad crossing 'extra hazardous' that the rule, they contend for, applies, but they say there was no evidence in the record that the embankment, Johnson grass, and other tall vegetation, west of Lynn Lane Road, which the evidence tended to show prevented motorists approaching the corssing, from the north, on said Road, from being able to see a train approaching the crossing from the west, were on...