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

• Decision Date: 28 April 1970
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 42395,42395
• Citation: 468 P.2d 1014,1970 OK 77
• Parties: RAILROAD COMPANY, a corporation, Plaintiff in Error, v. Hubert HARPER and Mrs. Hubert Harper, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 1014

468 P.2d 1014

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a corporation, Plaintiff in Error, v. Hubert HARPER and Mrs. Hubert Harper, Defendants in Error.

No. 42395.

Supreme Court of Oklahoma.

April 28, 1970.

Appeal from the District Court of Tulsa County; W. Lee Johnson, judge.

Action by the parents of Kenneth harper, a minor, who was fatally injured in an auto-train collision, against the railroad company and the train's engineer for damages for his wrongful death. After verdict and judgment for plaintiffs, and the overruling of the defendant railroad company's motion for a new trial, the latter appealed. Affirmed.

Bonds, Matthews & Mason, by A. Camp Bonds, Muskogee, for plaintiff in error.

Baker & Baker, Tulsa, for defendants in error.

BLACKBIRD, Justice.

This action is the third damage suit to come before this Court arising out of the same auto-train collision involved in the two cases of Missouri-Kansas-Texas Railroad Co. v. Hayes, Okl., 445 P.2d 249, and 445 P.2d 254. The first cited case will hereinafter be referred to as 'Hayes Case No. 1'.

In this case, defendants in error, hereinafter referred to as 'plaintiffs', sought recovery of the total sum of $24,750.00 from plaintiff in error and its train's engineer, H. S. Whitlock, hereinafter referred to as 'defendants', for the wrongful death of their 15-year-old son, Kenneth Harper, who was riding as one of the guest passengers in the front seat of the same 1959 Model Chevrolet Sedan, in which the Hayes children, involved in the cited cases, were riding, when that collision occurred. Kenneth Harper's injuries were fatal.

After a joining of its issues, very similar to that which occurred in the above cited cases, this case was tried before a jury. As the evidence introduced at this trial, including testimony elicited from some of the same witnesses, tended to establish the same essential facts concerning the railroad crossing, its surroundings, and the collision there, as were set forth in our opinions in those cases, we will not repeat, or refer to, all of them herein.

At the trial of this case, defendants challenged the sufficiency of plaintiffs' evidence in chief by a demurrer thereto, and, after saving their exceptions to the court's order overruling it, and after all parties had introduced all of their evidence and rested, defendants moved for directed verdicts. When these motions were overruled, defendants requested the court to give the jury certain instructions. These requests were denied, and defendants excepted to certain of the instructions the court thereafter gave the jury.

After its deliberations, the jury returned a verdict for plaintiffs, and against the defendant Railroad Company, for damages in the sum of $11,835.92. Judgment was thereafter rendered accordingly, and, after the overruling of its motion for a new trial, said defendant lodged the present appeal.

In its first proposition for reversal, defendant contends that the trial court erred in overruling its above mentioned challenges to the sufficiency of the evidence. Its argument that the court should have sustained its motion for a directed verdict is based largely upon evidence tending to show that its train reached the subject crossing before the Chevrolet Sedan, and was already across Lynn Lane Road, blocking the auto's path, when the latter arrived there and struck the train.

Defendant's theory is the same one it advanced in the Hayes Cases, supra, that, in such a situation, the presence of the train extending across the road at the crossing is sufficient notice, to motorists approaching the crossing, of such obstruction to travel on the road (without the necessity of the railroad giving any other warning) under such cases as Atchison, T. & S.F. Ry. Co. v. Templar, 204 Okl. 460, 230 P.2d 907. We indicated our answer to this argument in the Hayes Cases, supra, when we there held, in effect, that, in view of the evidence indicating that this railroad crossing was an extra hazardous one and that the auto and train arrived at it almost simultaneously, there was sufficient evidence to support the jury's verdict without regard to, or application of, the cited rule. After thoroughly examining the record before us, we find that the evidence in this case tends to establish the same controlling facts there referred to. Consequently, there is no reason why what we said relative to the rulings of the trial court on the defendants' motions for directed verdicts in those cases should not apply here. Accordingly, we hold here, as we did there, that the trial court committed no error in overruling the defendant Railroad Company's motion for a directed verdict and submitting the case to the jury to determine whether or not negligence on the part of said defendant was the proximate cause of the accident.

In argument under 'PROPOSITION X' of its brief for reversal of the judgment appealed from, defendant's counsel includes complaints concerning a variety of alleged errors occurring at the trial. They first charge that the court erred in admitting into the evidence, over their objection, the old wooden cross-buck warning sign which was standing at the railroad crossing at the time of the collision. Defendant says that the appearance of this sign in the courtroom was sufficient basis for the jury to conclude that it had replaced this sign with a more adequate one, thereby conceding its inadequacy to warn travelers of the crossing's presence there. We dealt with a similar argument in Hayes Case No. 1 and concluded our treatment of it as follows:

'Therefore, as, in our opinion a material issue in the case was not Jimmy Geren's ignorance as to the location of the crossing, but was, instead, whether, or not, he should have foreseen that a train would be approaching it at such a point, and in such a manner, as to render it dangerous for his auto to be driven to the crossing in the way in which he was driving it, we find the likelihood of prejudice, in the complained of proceedings, insufficient to warrant reversal of the judgment.'

As Jimmy Geren's knowledge of the railroad crossing's presence was no more a crucial issue in this case than it was in the above quoted case, the rule defendant cites in support of its argument, that the sign's admission into evidence was prejudicial error, is no more effective here than it was there; and we adopt what we said in that case as our answer to defendant's contention in this case.

Also under its PROPOSITION X, defendant next argues that the trial court erred in allowing, over its counsel's objection, plaintiffs' counsel to elicit from their witness, Glenn Hollabaugh, a former principal of an elementary school at the intersection of 81st Street and Lynn Lane Road, that (at some time) previous to the date of the collision, he had written the defendant 'concerning the condition' of the subject railroad crossing. At the close of this witness' testimony, defense counsel moved that this part of it be stricken from the record. This motion was overruled, as was defendant's objection to plaintiffs' counsel's mention of Hollabaugh's letter in his closing argument. Counsel says the witness' statement that he had written such a letter was inadmissible, since notice to the defendant of the crossing's condition 'was not an essential element of the lawsuit.' Though the court did not permit plaintiffs to introduce Hollabaugh's said letter into the evidence, defense counsel says the jury could imagine what it contained. Because the most damaging part of this witness' testimony depicted the crossing as a hazardous one, defense counsel's assumption, concerning the jury's ability to imagine that the excluded letter related to that subject, may be correct; but, as plaintiffs' brief points out, (in arguing that the testimony complained of was not prejudicial) there was an abundance of other testimony concerning the dangerousness of the crossing. In view of the fact that any inference, detrimental to the defendant, that the jury might have drawn from Hollabaugh's testimony that he had written defendant concerning the crossing, could only have been cumulative in its effect, we apply the same 'harmless error' rule with reference to its admission that we apply to the admission of cumulative evidence (see Denco Bus Co. v. Keller, 202 Okl. 263, 212 P.2d 469) and hold that, in view of the absence of any showing that the verdict would have been different had that testimony not been admitted, its admission is not cause for reversal.

Defense counsel next complain of certain instances in which the trial judge interrupted the examination of two of plaintiffs' witnesses, Mrs. Blair and Mr. Mezger, to interrogate them himself; of one instance in which he remarked: '* * * it is hard for her to answer', just before overruling an objection said counsel made to the competency of decedent's mother's answer to plaintiffs' counsel's request for an example of the dead boy's attitude of generosity toward his said parents; of another instance in which the court, over defense counsel's objection, allowed plaintiffs' counsel, in an attempt to impeach defendant's witness, Mezger, to cause said witness to read from a deposition taken at a former trial; and of another instance in which the judge allowed plaintiffs' witness, Broken Arrow's Police Chief Rampey, over defense counsel's objection, to describe the above mentioned cross-arm sign (in answer to a question by plaintiffs' counsel) as 'very poorly painted'. Defense counsel cites no authority to support a conclusion that the trial judge committed any error of law in the rulings and expressions referred to, but they express the opinion that, through them, he indicated to the jury how he thought the case should be decided; and that this was sufficient to bring about the jury's verdict for plaintiffs. We do not concur in counsel's view of the effect of the judge's conduct referred to. We have thoroughly examined the record and find...