Missouri P. R. Co. v. Merritt

• Decision Date: 23 September 1924
• Docket Number: 13299.
• Citation: 230 P. 513,104 Okla. 77
• Parties: MISSOURI PAC. R. CO. v. MERRITT.
• Court: Oklahoma Supreme Court

230 P. 513

104 Okla. 77

MISSOURI PAC. R. CO. v. MERRITT.

No. 13299.

Supreme Court of Oklahoma

September 23, 1924

Rehearing Denied Nov. 12, 1924.

Syllabus by the Court.

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 of 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.

The statute which requires a railroad company to give certain signals at highway crossings was not intended to furnish a standard by which to determine in every case whether or not such company had failed to discharge its duty in respect to giving sufficient warnings to the traveling public of the approach of its trains. It was intended rather to prescribe the minimum of care which must be observed in all cases.

Where a person driving a tractor desires to cross a railroad track at a regular crossing, and drives onto the track without looking or listening for the approach of trains, and a train strikes his tractor and demolishes it, and the evidence on the part of the railroad company shows that the whistle was blown at the regular place and the bell was set in motion and was kept ringing and the driver of the tractor did not look or listen before driving on the railroad, he is not entitled to recover in a suit for damages to his tractor.

Where the evidence shows that the engineer, on a train approaching a street crossing in a town, could not see a tractor which was approaching the railroad crossing on the opposite side from where the engineer was sitting, and did not see or know of the approach of the tractor until it was struck by his engine, and the evidence shows that the person driving the tractor did not look or listen, but carelessly and negligently drove onto the railroad track, and was struck by the engine of the passing train, such person cannot recover for the damage done his tractor by the railroad train because there was no primary negligence shown on the part of the person operating the train.

Commissioners' Opinion, Division No. 1.

Appeal from District Court, Rogers County; C. W. Mason, Judge.

Action by L. L. Merritt against the Missouri Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded with instructions.

This case grew out of an accident which occurred on the defendant railroad at the station of Talala in Rogers county, whereby a passenger train of the defendant railroad company struck a tractor which was driven by one of the plaintiff's employés. The facts in regard to said accident are as follows: On the 23d day of August, 1920, the plaintiff was the owner of a certain Twin City tractor 12-20 horse power the value of which is alleged to have been $1,550. Clay Jones, who had been in the employ of the plaintiff, L. L Merritt, for about three years prior to said time, was driving the tractor belonging to the plaintiff through the town of Talala, and in order to reach his destination he had to cross the railroad of the defendant, and, about the time that he reached the crossing, a passenger train on the defendant's track came in from the south going north, and the tractor was struck near the front and knocked from the track and badly demolished. The driver, Clay Jones, saw the approaching train in time to jump from the tractor and get out of the way and was not injured.

The controversy in the case arose over the question as to whether Clay Jones was using the proper caution in approaching the crossing on said railway, and whether the railroad company was guilty of negligence in running on the said tractor which destroyed it. The evidence of Clay Jones is that he was ordered by the plaintiff, Merritt, to take the tractor, which had a plow fixed to it, from one side of the town to the other, and he was performing this duty at the time the tractor was struck by the train. Jones testified that he was going along the street until he got to the cross street that led into the crossing over the railroad tracks. He said he did not see the train nor hear the whistle nor hear the bell ring; that he did not stop when he drove up to the railroad but drove his tractor onto the railroad over the first rail before he heard the approach of the train. He said the first thing that attracted his attention to the train was the sound of the bell, and when he looked up the train was right on him and he jumped from the tractor and escaped injury. He stated in his testimony on cross-examination that he was not thinking about the train and that he did not stop, look, or listen, but just drove up to the track and started across, when he heard the bell of the engine and looked and saw the train coming and jumped off.

L. L. Merritt, the plaintiff, testified that he was in his garage near the place where the accident occurred sitting at his desk, and that he said to some one who was present, "I believe I heard the train whistle," and stepped towards the door and looked out to see where Jones was, and said, "I don't believe Clay can hear the train," and that he ran out and yelled to Jones as loud as he could, but that Jones evidently did not hear him. There was a diagram of the station and the surroundings introduced in evidence and also a photograph of the same. Both of these pictures show that there is a section house south of the depot and south of the crossing where the accident occurred, and there was some trees in the yard of said section house that obstructed the view of a person on the north of said section house, so that the train coming from the south could not be seen very well until it passed by these trees unless a person was near the track or on the track. Jones testified that he did not hear the train whistle, nor hear the bell, until the train was right on him; that his tractor was running and made considerable noise from the exhaust, which perhaps accounts for his not hearing the train approaching.

A. R. Wilson, the engineer on said train, testified that he sounded the whistle at the usual signal points, and set the bell ringing until the air was shut off; that he could not see the west side of the track from which the tractor was approaching from where he sat in the cab, and did not see this tractor approaching; that the first he knew of it was when he struck it. The fireman who sat on the other side of the cab said that the first he saw of the tractor it was about 15 feet from the railway tracks, and the driver was apparently not looking towards the railroad. He also testified that the whistle was blown south of town at the usual whistling post, and that the bell was kept continually ringing as usual, and that he had every reason to believe that the person driving the tractor would stop before he got to the track. There were several other witnesses who testified, some for the plaintiff, and all of whom said they did not hear the whistle blow nor the bell ring. While there were several witnesses outside of the flagman, fireman, and engineer who testified to hearing the whistle blow and the bell ring, the plaintiff himself said he heard the whistle blow. It appears from the evidence that the train was about 45 minutes late, but that it came in about its usual speed, and stopped soon after it struck the tractor, and did not run up to the regular place or stop at the depot. The testimony of those who said they did not hear the whistle blow or the bell ring, is of a purely negative character, while there are 5 or 6 witnesses who testified that they heard both the whistle and the bell at the crossing.

At the close of plaintiff's testimony, defendant demurred to the evidence of plaintiff, on the ground that it did not show liability on the part of the defendant. This demurrer was overruled and the defendant then introduced its testimony and after both parties had rested...