Missouri Pac. R. Co. v. Diffee

• Decision Date: 13 October 1947
• Docket Number: No. 8246.,8246.
• Citation: 205 S.W.2d 458
• Parties: MISSOURI PAC. R. CO. et al. v. DIFFEE et al.
• Court: Arkansas Supreme Court

205 S.W.2d 458

MISSOURI PAC. R. CO. et al. v. DIFFEE et al.

No. 8246.

Supreme Court of Arkansas.

October 13, 1947.

Rehearing Denied November 24, 1947.

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Action by Jeff Diffee and Bobby Dale Diffee, against the Missouri Pacific Railroad

Co. and others to recover for injuries sustained by the last named plaintiff when the automobile he was driving was struck by the defendant's train. Judgments for the plaintiffs and the defendants appeal.

Judgments affirmed.

Thomas B. Pryor and Thomas Harper, both of Fort Smith, for appellants.

Wall & Green, of Sallisaw, Okl., nonresidents, and Partain, Agee & Partain, of Van Buren, for appellees.

McFADDIN, Justice.

This is a railroad grade crossing case. On November 22, 1945 Bobby Dale Diffee, then 18 years of age, attempted to drive his automobile north on Oak Street in Sallisaw, Oklahoma, across the main line track of the Missouri Pacific Railroad Company. His car was struck by the engine of a west-bound passenger train, and was carried about 300 feet before the train stopped. Young Diffee sustained injuries, the nature and extent of which will be discussed in topic III, infra. This action was filed in Crawford County, Arkansas by Jeff Diffee to recover damages for himself as parent. He also sued as next friend for the minor, to recover damages for the injuries sustained by Bobby Dale Diffee. The father and son are the appellees here. The defendants below — and appellants here — are Missouri Pacific Railroad Company (by its trustee), and the engineer and fireman of the locomotive that struck young Diffee's car.

The collision occurred in Oklahoma, and the actions were brought in Arkansas. According to the well-established rule, the law of Oklahoma governs as to substantive rights, and the law of Arkansas governs as to procedural rights. Crown Coach Co. v. Whitaker, 208 Ark. 535, 186 S.W.2d 940 and cases and authorities there cited. See also St. Louis-San Francisco R. Co. v. Cox, 171 Ark. 103, 283 S.W. 31, and Leflar on Conflict of Laws, page 197; and 11 Am.Juris, 498. This rule is conceded by both sides in this litigation. Some of the Oklahoma cases involving railroad crossing accidents are: Missouri Pac. R. Co. v. Merritt, 104 Okl. 77, 230 P. 513; Missouri, K. & T. R. Co. v. Flowers, 187 Okl. 158, 101 P.2d 816; Thorp v. St. Louis & S. F. R. Co., 73 Okl. 123, 175 P. 240; Missouri, K. & T. R. Co. v. Perino, 118 Okl. 138, 247 P. 41, 47 A. L.R. 283; Dickinson v. Cole, 74 Okl. 79, 177 P. 570; Missouri, K. & T. R. Co. v. Stanton, 78 Okl. 167, 189 P. 753; St. Louis, I. M. & S. R. Co. v. Gibson, 48 Okl. 553, 150 P. 465; Kugler v. White, 91 Okl. 130, 216 P. 903; St. Louis-S. F. Ry. Co. v. Rundell, 108 Okl. 132, 235 P. 491; Thrasher v. St. Louis & S. F. R. Co., 86 Okl. 88, 206 P. 212. In the case at bar there were judgments for each of the appellees; and in this appeal the appellants present the three contentions herein listed and discussed.

I. Appellants Contend that They were Free of Negligence, and were Therefore Entitled to an Instructed Verdict in Their Favor. The only allegation of negligence submitted to the jury was the defendant's alleged failure to give the statutory signals. Title 66, Section 126 of the Oklahoma Statutes of 1941 reads: "A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said railroad shall cross any other road or street, * * *."

There were several witnesses who testified that these signals were not given. One was the plaintiff, Bobby Dale Diffee. Another was a disinterested witness, Thomas Scott. He testified that he was only a short distance from the crossing, and that he was looking directly at it and saw the train strike the car; and he said:

"The whistle didn't blow, and the bell didn't ring. It rang after it hit the car. Just as quick as it hit the car, I jumped out of my car; I got my keys out and opened the door of my place and called the ambulance. I knew they would need one.

"Q. You say that the train didn't whistle or ring a bell. Do you tell the jury that you were looking in that direction? A. Yes, sir."

Other witnesses testified to like effect; and we conclude there was sufficient evidence to take the case to the jury on the question of whether the statutory signals were given. St. Louis, I. M. & S. R. Co. v. Kimbrell, 117 Ark. 457, 174 S. W. 1183; Missouri Pac. R. Co. v. Rogers, 184 Ark. 725, 43 S.W.2d 757; St. Louis-S. F. R. Co. v. Rundell, 108 Okl. 132, 235 P. 491.

II. Appellants Contend that the Undisputed Proof Shows that Bobby Dale Diffee was Guilty of Contributory Negligence, which is a Bar to Recovery. The State of Oklahoma does not appear to have a comparative negligence statute similar to our statute, section 11153, Pope's Digest; and, so, in Oklahoma, contributory negligence is an absolute defense. Appellants claim that contributory negligence was shown by the undisputed proof, and they contend that an instructed verdict should have been given in favor of the appellants. Against this claim of appellants, the appellees answer that (a) the Constitution of Oklahoma forbids an instructed verdict in such a case, and (b) the facts here made a case for the jury. We notice these.

(a) The Constitution of Oklahoma, art. 23, sec. 6, says: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury."

Appellants say this constitutional provision relates to procedure only, and not to substantive rights, and that since the Arkansas law governs as to procedure, the quoted Oklahoma constitutional provision is not binding. Appellants ask us to overrule our cases of Missouri Pac. R. Co. v. Miller, 184 Ark. 61, 41 S.W.2d 971, and Missouri Pac. R. Co. v. Holmes, 197 Ark. 576, 124 S.W.2d 14, in which cases we held that art. 23, sec. 6 of the Oklahoma Constitution created a substantive right, rather than prescribed a mere matter of procedure. Appellants insist that in these cases we overlooked the two Oklahoma cases of Independent Cotton Oil Co. v. Beacham, 31 Okl. 384, 120 P. 969, and Muskogee Co. v. Napier, 34 Okl. 618, 126 P. 792.

In asking us to overrule our cases, the appellants cite us to Hopkins v. Kurn, 351 Mo. 41, 171 S.W.2d 625, 149 A.L.R. 762, and Bourestom v. Bourestom, 231 Wis. 666, 285 N.W. 426. On the other hand, appellees insist that we adhere to our former holdings; and they cite Caine v. St. Louis & S. F. R. Co., 209 Ala. 181, 95 So. 876, 32 A.L.R. 793, wherein the Supreme Court of Alabama reached the same conclusion as that in our cases, supra. In the excellent briefs, filed by both sides, the respective contentions are ably argued; but we find it wholly unnecessary to discuss — much less decide — this contention, because of our holding on the factual issue now to be discussed.

(b) The facts here made a case for the jury. We give a brief review of some of the evidence. Young Diffee was driving his car north on Oak Street. He testified that, as he approached the main line track, his view to the east was partially obstructed by a string of railroad cars extending to within 15 or 20 feet of his car. Other witnesses said that the string of railroad cars extended to within 20 feet of Oak Street, while others estimated that the railroad cars extended to within 50 feet of Oak Street. In addition to the string of cars, there were also three small structures on the railroad right of way south of the main track and east of Oak Street; and it was testified that these also tended to obstruct the view to the east. Young Diffee testified that he brought his car to a stop 5 or 10 feet south of the main track; that he heard no signal; that he looked first to the east, and then to the west, and he saw no train approaching from either direction, and he then proceeded to cross the main track with his car in second gear at a speed of 5 or 6 miles per hour; and that after he was on the track, he saw — for the first time — a train approaching from the east, and that this train struck his car. It was shown that his car was still in second gear after the wreck.

Other eye witnesses substantiated Diffee's testimony. The witness, Thomas Scott, testified as regards Diffee's car: "* * * I was looking over there. This "B" model car was going north, driving rather slowly and stopped just before he got to the tracks; and just as he started across the tracks the train hit him. I didn't see the train until just before it hit him, because there were some box cars along there."

The fireman of the train that struck Diffee's car said he saw the car slow down a few feet from the crossing; and then continue forward. Under this testimony as detailed, and other testimony in the record, we conclude that even under our own holdings, there was made a fact question for the jury, on whether young Diffee was guilty of any contributory negligence. Smith v. Missouri Pac. R. Co., 138 Ark. 589, 211 S.W. 657; St. Louis, I. M. & S. R. Co. v. Kimbrell, 117 Ark. 457, 174 S.W. 1183; Missouri Pac. R. Co. v. Shell, 208 Ark. 70, 185 S.W.2d 81, and cases there cited.

Finally, on this issue of contributory negligence, the appellants contend that all of the testimony offered on behalf of appellees should be discarded as contrary to established physical facts. In the recent case of Alldread v. Mills, 199 S.W.2d 571, we had occasion to discuss such a contention; and many cases and treatises are there listed. Appellants offered in evidence pictures, diagrams and drawings designed to show that the west end of the string of box cars on the switch track south of the main track was necessarily more than 100 feet east of the Oak Street crossing, because — as the appellants contend — if the west end of the box cars had been closer than 100 feet to the Oak Street...