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

• Decision Date: 18 April 1961
• Docket Number: No. 38422,MISSOURI-KANSAS-TEXAS,38422
• Parties: RAILROAD Co., a corporation, and Ernest A. Durbin, Plaintiffs in Error, v. John R. EDWARDS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 459

361 P.2d 459

1961 OK 92

MISSOURI-KANSAS-TEXAS RAILROAD Co., a corporation, and Ernest A. Durbin, Plaintiffs in Error, v. John R. EDWARDS, Defendant in Error.

No. 38422.

Supreme Court of Oklahoma.

April 18, 1961.

Syllabus by the Court

1. The question of the degree of care required of a railroad company to avoid an accident with a motorist at one of its highway crossings in a given situation, and the question of whether its failure to exercise the care incumbent upon it was the proximate cause of said accident, are questions for the jury where reasonable men may differ as to what facts the evidence establishes and the reasonable inferences to be drawn therefrom.

2. The incorporation of the petition and answer in the court's instructions is not prejudicial error, where in other portions of the instructions the issues are clearly stated.

3. Prejudicial remarks of counsel in his argument to the jury are not available as a ground for reversal unless objected to and exception taken at the time such remarks were made, and the remarks, as well as the objection and exception thereto, must be shown in the record of the proceedings of the trial.

4. Where the misconduct of counsel is made one of the grounds of error on appeal, the facts upon which said error is based must clearly appear in the record, must be saved in motion for a new trial, and must be of such character as would prejudice the cause of the complaining party.

5. In determining whether a verdict in an action for personal injuries is excessive, the court will consider all relevant circumstances such as the nature and extent of the injuries; pain endured and that which may be endured in the future; expenses incurred and which may be incurred; the age of the injured person and his life expectancy; his earning capacity prior to the injury and the impairment of same, and where future damages are awarded, the present worth of the award.

6. Under the record, the verdict of $650,000.00 and the judgment thereon are grossly excessive. The verdict should therefore be set aside and a new trial granted unless a remittitur is filed within the time provided in this opinion to that portion of the judgment, which, exclusive of costs, is in excess of $278,793.00.

Appeal from Superior Court of Creek County; G. B. 'Chuck' Coryell, Judge.

Action by plaintiff to recover damages from defendants for personal injuries sustained in a train-automobile collision. From judgment on verdict for plaintiff, defendants appeal. Affirmed subject to remittitur.

Doerner, Stuart, Moreland, Campbell & Saunders, Tulsa, and William A. Thie, Denison, Tex., for plaintiffs in error.

Rucker, Tabor, Best, Sharp & Shepherd, O. H. 'Pat' O'Neal, Wesley Whittlesey, Sapulpa, for defendant in error.

PER CURIAM.

In this action, defendant in error, John R. Edwards, hereafter referred to as 'plaintiff', seeks to recover damages from the plaintiffs in error, Missouri-Kansas-Texas Railroad Co., hereafter referred to as 'Katy', and Ernest A. Durbin, hereafter referred to as 'Durbin', for personal injuries sustained upon an automobile in which plaintiff was a passenger being struck by one of Katy's freight trains at a point where Sheridan Road crosses Katy's railroad tracks in or near the east portion of Tulsa, Oklahoma. When plaintiffs in error are referred to collectively herein, they will be referred to as 'defendants'. Plaintiff also seeks to recover damages for medical expenses incurred and those which will be incurred because of serious and permanent injuries sustained by his wife, Carmen, who was also injured in the collision.

Plaintiff alleged in substance in his petition that the collision and the bodily injuries that he and his wife sustained as a result thereof were the direct result and proximate cause of Katy's and Durbin's, (who was the engineer on the freight train) negligence in that (1) defendants operated the train at a speed in excess of 40 miles per hour in violation of an ordinance of the City of Tulsa relating to the speed of trains traveling within the corporate limits of said city; that (2) Durbin failed to sound the whistle or ring the bell on the locomotive to the train at a distance of at least eighty rods from the crossing in violation of the statutes of this State; that (3) Katy failed to install adequate warning devices in addition to those contemplated by 66 O.S.1951 § 124, at the corssing which was unusually dangerous. In his original petition, plaintiff sought to recover damages in the amount of $285,137.30. By amendment to the petition he sought to recover damages in the amount of $325,804.85 and prior to trial he amended his petition instanter so as to seek damages in the amount of $750,804.85.

In their answer, defendants denied the allegations of plaintiff's petition. Defendants pleaded further that if plaintiff were injured his injuries were due to his negligence and that of his agent (and daughter, Darla) who was operating the automobile involved in the collision; that if defendants were negligent, plaintiff's negligence contributed to the collision and resulting injuries; that the collision was unavoidable.

The case was tried to a jury. The jury returned a verdict in plaintiff's favor in the amount of $650,000. From judgment on the verdict, defendants perfected this appeal.

The uncontroverted evidence which is thought pertinent to this appeal can be summarized as follows:

At the time the collision occurred, March 13, 1956, at approximately 8:40 a. m., a light rain was falling. The asphalt paving over which the automobile involved in the collision was being driven, was wet. The paving at and near the crossing was uneven and broken. Witnesses described the paving at said point as being 'washboardy'.

Katy owned the railroad tracks and the train. Durbin was its agent and engineer.

The automobile was owned and operated by plaintiff's daughter, Darla, who was the only child of plaintiff and his wife. Plaintiff's wife was the only other passenger in the automobile. She was seated in the middle of the front seat and plaintiff seated immediately to her right. Darla frequently passed over the crossing and was familiar with same. The automobile approached the crossing from the south at a rate of speed of approximately 30 miles per hour.

At the point of the collision, Katy's tracks extend in a northwesterly-southeasterly direction. The train approached the crossing from the northwest. It was agreed that the train was traveling not less than 35 miles per hour as it approached the crossing. An ordinance of the City of Tulsa fixed the maximum speed at which trains should operate within its corporate limits at 25 miles per hour.

There was a hill to the west and south of the crossing, which hill crested approximately 300 feet south of the crossing. The hill served to obstruct the view of a northbound motorist to his left or northwest up the Katy's tracks until he reached a point near the crossing. The only warning device at the crossing was the customary 'cross-bucks' which were placed on either side of the road at points approximately 46 feet from the crossing.

The corporate limits of Tulsa had been extended to the east and embraced the west portion of Sheridan Road but not the east portion of said road.

As a result of the collision, plaintiff and his wife sustained serious and permanent injuries.

In discussing the contentions of the parties, we will refer to other evidence that bears on said contentions.

There was competent evidence sustaining each of the heretofore referred-to alleged acts of negligence which were set forth in plaintiff's petition. The defendants, however, contend that the evidence fails to show that said acts of negligence on their part were the proximate cause of the collision and in the alternative urge that the trial court committed reversible error by permitting plaintiff to introduce prejudicial evidence which was incompetent and irrelevant; by failing to properly instruct the jury and by permitting plaintiff's counsel to make improper and prejudicial statements in his argument to the jury. Defendants also contend that the statutes creating the Superior Court of Creek County are unconstitutional and that said court was wholly without jurisdiction to try the instant case (this contention runs counter to our decision in Missouri-Kansas-Texas Railroad Co. v. Coryell, Okl., 346 P.2d 935), and that the verdict of the jury is excessive.

In support of their contention to the effect that negligence on their part was not the proximate cause of the accident, defendants refer to Darla's testimony to this general effect: At a point approximately 46' to 97' from the crossing she looked to her left (northwest) and then to her right (southeast) and then to her left. Upon looking to the left she saw the engine of the train; that when she first looked to her left she was traveling approximately 15 miles per hour.

A witness testified as an expert that an automobile traveling 15 miles per hour will travel 22' per second; that an automobile traveling at said speed can be braked to a stop in 14'; that the period transpiring between the time that an operator sees an object which dictates application of his brakes and the application of same varies from 3/4ths to one second; that as a rule an automobile traveling at 15 miles per hour will travel 15' during said reaction period; that in the instant case a distance of approximately 8' should be allowed for the rough condition of the pavement and the fact that it was wet.

Using the referred-to testimony as a premise, defendants argue that Darla could and should have braked her automobile to a stop in from 37 to 44 feet after becoming aware of the approaching train.

Defendants contend that Darla testified that she first saw the locomotive when her automobile was not less than 70' from the crossing; that the locomotive was then not less than 400' from the crossing; that since Darla should have...