Pittsburg Cnty. Ry. Co. v. Campbell

• Decision Date: 31 March 1925
• Docket Number: Case Number: 14971
• Citation: 110 Okla. 79,236 P. 27,1925 OK 262
• Parties: PITTSBURG COUNTY RY. CO. v. CAMPBELL.
• Court: Oklahoma Supreme Court

1925 OK 262

236 P. 27

110 Okla. 79

PITTSBURG COUNTY RY. CO. v. CAMPBELL.

Case Number: 14971

Supreme Court of Oklahoma

Decided: March 31, 1925

Syllabus

¶0 1. Street Railroads--Injuries to Persons on Track--Contributory Negligence.

In an action founded on negligence of the motorman of a street car in failing to exercise ordinary care to stop the car and prevent injuring the plaintiff after plaintiff had been discovered in a perilous position on the track, contributory negligence on the part of the plaintiff, in order to be available as a defense, must have occurred with actual knowledge on the part of the plaintiff of his then present and impending peril.

2. Same--Remoteness of Contributory Negligence.

Where, in such an action, there is evidence tending to show that contributory negligence on the part of the plaintiff in approaching the railway track without looking for the approaching car did not continue as the proximate cause of the injury, but was superseded by a chain of circumstances in which such contributory negligence became only remotely connected with the injury, and there is no evidence of any contributory negligence on the part of the plaintiff occurring subsequent to the time his position of peril on the track was discovered by the defendant, it then became a question for the jury to determine whether or not the injury was caused by the sole negligence of the defendant in failing to use ordinary care to stop the car after the perilous position of the plaintiff on the track had been discovered, and in these circumstances the law of concurring contemporaneous negligence has no application.

3. Same--Sufficiency of Instructions.

Where the only contributory negligence by the plaintiff which the evidence in any way tended to establish was either in going upon the track without looking for approaching cars, or in attempting to outrun the car and pass across the track in front of the car after becoming aware of its approach, the trial court did not commit reversible error in its instruction to the jury in failing to distinguish between contributory negligence occurring prior to the discovery, by the defendant, of the plaintiff in a position of peril on the track, and contributory negligence occurring subsequent thereto, and in these circumstances, general instructions on contributory negligence were sufficient.

Commissioners' Opinion, Division No. 5.

Error from District Court, Pittsburg County; Harve Melton, Judge.

Action by William Campbell against the Pittsburg County Railway Company, Judgment for plaintiff, and defendant appeals. Affirmed.

Monk & McSherry, for plaintiff in error.

George M. Porter and John L. Fuller, for defendant in error.

FOSTER, C.

¶1 William Campbell, hereinafter called the plaintiff, sued the Pittsburg County Railway Company, a corporation, hereinafter called the defendant, to recover $ 5,000 for personal injuries sustained by him, on the first day of April, 1922, at the intersection of First street and Madison avenue, in the city of McAlester, Okla., by coming in contact with a street car owned and operated by the defendant.

¶2 Issues were joined and upon a trial had in the district court of Pittsburg county, the jury returned a verdict in favor of the plaintiff for the sum of $ 1,000.

¶3 Motion for a new trial was filed by the defendant, overruled, exceptions reserved, and this defendant appeals, assigning as error the action of the trial court in overruling its motion for a new trial, in overruling its demurrer to the evidence of the plaintiff, and in giving certain instructions to the jury and refusing other requested instructions.

¶4 The principal question raised by the defendant and discussed in its brief is whether or not under the evidence disclosed by the record and introduced at the trial, the doctrine known as the modern doctrine of the "last clear chance" was applicable, and if applicable, whether the trial court properly defined the law relating thereto in its instruction to the jury.

¶5 The evidence discloses that the plaintiff, a man about 65 years old and deaf or partially deaf in one ear, in the late afternoon of April 1, 1922, was proceeding northward on the west side of First street in the city of McAlester, Okl.; that on the occasion in question, the plaintiff, at a point where the sidewalk along which he was proceeding reached Madison avenue, left the sidewalk and followed a footpath which lead him in a northeasterly direction a distance of some 40 feet to the railway track of the defendant where it intersects with the Madison street roadway, from which point the plaintiff proceeded north across said roadway and parallel with the tracks of the defendant a distance of some 16 feet, where the plaintiff intended to cross the track on the north side of the Madison street roadway and then proceed on his journey eastward along the north side of Madison avenue to his destination.

¶6 As the plaintiff left the sidewalk and approached the track of the defendant along the pathway mentioned, one of the defendant's interurban cars approached the intersection of Madison avenue and First street from the south, and the plaintiff was observed approaching the track by the motorman operating the car, who blew the emergency whistle and continued to sound the whistle at short intervals, at the same time reducing the speed of the car.

¶7 The plaintiff arrived at the point where Madison street roadway intersects with the street car track ahead of the car, turned north along the track as it passes across the Madison street roadway and was struck by the front steps of the car, thrown to the ground, and injured. The street car was going at the rate of about four miles per hour and proceeded, after the impact, about the length of the car when it came to a full stop, with the plaintiff lying immediately opposite the rear vestibule of the car.

¶8 The plaintiff admits that he did not look to see whether or not a car was approaching the intersection before going upon the track nor while walking along the rail on Madison street roadway, and it is conceded that the plaintiff could not hear the alarm sounded by the motorman.

¶9 It is established by the evidence, practically without conflict, that for a distance of two blocks south of the place of injury, the track was straight and unobstructed and that the plaintiff could have been seen approaching the tracks practically the entire time occupied in running from Jefferson street intersection to Madison street intersection, a distance of one city block.

¶10 It is contended in the first instance that primary negligence on the part of the defendant has not been shown, and that the trial court erred, therefore, in not sustaining the evidence. We cannot agree with this contention.

¶11 There was evidence of a very clear and convincing nature that the plaintiff did not attempt to cross the street car tracks on the south side of Madison street roadway, but that he intended to cross the track on the north side of the roadway, and that in order to do this he reached the street car tracks at a point where they intersect with the south side of Madison street roadway, ahead of the street car, turned north across the roadway parallel with the west rail, and while walking along this rail and near the middle of the roadway, was struck by the front steps of the car and injured, and that he did not see nor hear the car approaching from behind, and was not aware of his perilous position prior to the impact.

¶12 The testimony of the witness, W. S. Utzman, was to the effect that the plaintiff, while approaching the street car tracks, as well as while walking along the track in the roadway, had his hands crossed behind him, his head down in deep study, and appeared wholly unconscious of danger; that the motorman in charge of the car for a full city block saw the plaintiff and was continuously sounding the alarm and reducing the speed of the car as he approached from behind, and struck the plaintiff while going at a rate of about four miles per hour.

¶13 The plaintiff himself testified that after bringing the car to a stop the motorman approached him as he lay on the ground in the Madison street roadway and said: "Oh, it's Mr. Campbell, I thought I could pass you." These and other circumstances not necessary here to be detailed were sufficient, we think, to establish primary negligence on the part of the defendant,...