Oklahoma Union Ry. Co. v. Houk

• Decision Date: 16 September 1924
• Docket Number: 13-564.
• Citation: Oklahoma Union Ry. Co. v. Houk, 235 P. 499, 109 Okla. 187, 1924 OK 737 (Okla. 1924)
• Parties: OKLAHOMA UNION RY. CO. v. HOUK.
• Court: Oklahoma Supreme Court

235 P. 499

109 Okla. 187, 1924 OK 737

OKLAHOMA UNION RY. CO. v. HOUK.

No. 13-564.

Supreme Court of Oklahoma

September 16, 1924

Rehearing Denied Dec. 9, 1924.

Syllabus by the Court.

While under section 6 of article 23 of the Constitution contributory negligence and assumption of risk are questions of fact to be submitted to the jury, this section does not apply to the primary negligence because of which a recovery is sought, and, where there is no evidence reasonably tending to show that a defendant is guilty of negligence, it is error to submit the issue to the jury.

A railroad company will not be held liable for personal injuries where there is no positive evidence or reasonable inference to be drawn from the testimony that the railroad was guilty of negligence.

While it is the well-settled rule in this state that a verdict based upon conflicting testimony will not be disturbed where there is evidence reasonably tending to support such verdict yet, in a case where there is no competent evidence reasonably tending to support a verdict and judgment, it will be reversed.

Ordinarily a witness who testifies to an affirmative is entitled to credit in preference to one who testifies to a negative.

Commissioners' Opinion, Division No. 3.

Appeal from District Court, Creek County; Lucian B. Wright, Judge.

Action by William G. Houk against the Oklahoma Union Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, with instructions.

J. H Grant, of Oklahoma City, for plaintiff in error.

Thompson & Smith, of Sapulpa, for defendant in error.

RUTH C.

This action was brought in the district court of Creek county by the defendant in error against the plaintiff in error, and for convenience the parties will be designated as they appeared in the court below.

Plaintiff in his petition alleges he was riding on the front seat of an automobile on Division street in the city of Sapulpa, the auto being owned and driven by John Maddox; that the defendant's interurban line intersects Division street at a "sharp angle"; that the day was "windy and rainy," and while going south on Division street that defendant's train, consisting of a motorcar and trailer, proceeding in a northeasterly direction, struck the automobile in which plaintiff was a passenger, and caused the injury to the plaintiff therein complained of. Plaintiff further alleges the defendant's railway tracks, after leaving the "Frisco Depot," run through a deep cut and around a curve, until within 75 yards of the Division street crossing, and there is 75 yards of straight track from the end of the cut to the crossing where the accident occurred.

Plaintiff's petition alleges negligence of the defendant, in that its employees "drove the train at an excessive and dangerous rate of speed of 35 miles an hour around the curve and through the cut and along the railway to the crossing," and "that defendant wholly omitted to give any signal, either by whistle or bell, of the approach of the train to said crossing, and, owing to the wind and rain, neither the plaintiff nor the driver of the automobile could see or hear the approach of the train to said crossing." Plaintiff alleges injury and prays judgment. Defendant for answer files a general denial, and for further answer alleges plaintiff and the driver of the automobile had been drinking intoxicating liquors; that plaintiff knew the driver was intoxicated; that the railroad train could be seen from a distance of 150 yards before it reached the intersection of Division street; that the train was proceeding at a very moderate rate of speed; that the motorman sounded his signals, and the plaintiff, by the exercise of reasonable diligence, could have, and should have, seen the train and heard the signals, in ample time to have warned the driver of the automobile, but plaintiff failed to warn the driver of the approach of the train; that the automobile was driven against the side of defendant's train; and alleges contributory negligence.

After reply filed denying all the matters set up in the answer, the cause was tried to a jury and a verdict returned for the plaintiff, and defendant appeals.

Under the plaintiff's petition it was necessary for him to prove one or both acts of negligence complained of, to wit, first, that the defendant's train was being driven at an excessive or dangerous rate of speed; or second, that the employees in charge of the train failed to sound any signals by whistle or bell. Plaintiff testified that the weather was "windy and rainy"; that they had the curtains on the car; that as they approached the interurban track he opened the door and looked for a train but did not see or hear it, and the automobile slowed up within 30 or 40 feet of the track. It developed that the Frisco Railroad crosses Division street just north of the interurban tracks, at a distance of 330 feet, and plaintiff testified he did not see the Frisco passenger train approaching them when they crossed the Frisco tracks, but heard it go over the crossing just after the automobile crossed the Frisco tracks and while they were approaching the interurban tracks; that he opened the door of the automobile and looked, because he knew the interurban tracks were there, and knew it was about time for the interurban car to come along there; that they crossed the Frisco tracks without looking or listening for a train. Plaintiff further testifies that he does not know anything about the speed of the train, all he knows is he did not see it or hear any signal.

Maddox, the auto driver, testified that he looked to the left and plaintiff looked to the right, for the interurban, and the interurban train came from the right. Maddox could see the interurban tracks from the Frisco tracks a distance of 330 feet; that he had a few drinks; and that whisky might have got into his car without him knowing it.

J. C. Dupree, locomotive engineer, was driving train No. 7 on the Frisco line, and saw an automobile "shoot across the Division street crossing, just ahead of his train, does not know it was the same auto, but saw an auto at the interurban tracks, and saw people carrying a man away just after an auto crossed in front of his train, and the auto was going mighty fast."

S. C. Rielly, a farmer by occupation, deposed he was walking down the interurban track toward the approaching train, that he knows it sounded its signals, as he was walking between the rails and the signals caused him to look up and step off the track to let the train go by, and as it went by it signaled again, for the crossing, and the second signal was longer than the first.

Some 19 witnesses were sworn and testified for defendant. Some testified to finding bottles of whisky in the wrecked car, and some 10 to 12 witnesses, not connected with the defendant company, testified to hearing the interurban train whistle and ring the bell, and the speed of the train before it reached the crossing was variously estimated at from 10 to 15 miles per hour, by disinterested witnesses. V. O. Eastland, civil engineer, identified a plat made by him showing the Frisco tracks were 330 feet north of the interurban tracks, and from the Frisco crossing a person had an unobstructed view of the interurban tracks for a distance of 450 feet. O. W. Keller, not employed by the defendant company, testified he was on the interurban car just inside the baggage car door, that the emergency brake was applied and the automobile struck the interurban just by the baggage car door, and he was within 8 feet of it when it struck. R. H. Terrell, employed by the Sinclair Pipe Line Company, was sitting in the first car of the interurban, and heard the motorman blow his whistle 200 or 300 feet from the crossing, and heard the bell ring; motorman kept "jangling the bell." S. G. Manlow, of Greenfield, Mo., judged the interurban was running 8 miles per hour, and judged the auto was going 40 to 50 miles per hour. Heard the whistle sounded twice before reaching the crossing. The blasts were a minute and a half apart. Mr. Watson, of the Tulsa fire department, was a passenger on the interurban. The cars were going 8 or 10 miles per hour, maybe 12, and he heard both the whistle and bell about 100 yards from the crossing. He looked out the window and saw the auto swerve as though it was trying to miss the interurban. Witness was standing, and when the motorman applied the brake it threw witness off his balance. Mr. Hale was about 75 yards from the scene of the accident and heard the interurban whistle. J. F. Trour, of Sapulpa, was about 250 feet from the scene of the accident and heard the interurban whistle for the crossing. Guy Sheffield was on the interurban, and "felt the air applied." Cleo Duckworth of Sapulpa, was near the scene of the accident, and heard the interurban whistle for the crossing.

R. E. Corcoran, conductor of interurban, felt the emergency air applied. C. C. McWaters, Waters, conductor on the front car heard the motorman blow the crossing whistle 100 or 200 feet from the crossing. M. L. Messick, motorman, testified he sounded the crossing whistle about 200 feet from the crossing, and applied the air.

The testimony for the plaintiff was wholly negative; the witnesses testifying that they never saw the train before it struck them, and did not hear a signal.

It was essential to the maintainance of the plaintiff's case that he establish by competent evidence, primary negligence on the part of the defendant, either that the train was being driven at a dangerous rate of speed or that it failed to sound proper...