Raley v. Thompson

• Decision Date: 24 October 1950
• Docket Number: No. 33898,33898
• Citation: 203 Okla. 633,225 P.2d 171
• Parties: RALEY v. THOMPSON et al.
• Court: Oklahoma Supreme Court

Page 171

225 P.2d 171

203 Okla. 633

RALEY v. THOMPSON et al.

No. 33898.

Supreme Court of Oklahoma.

Oct. 24, 1950.

Rehearing Denied Dec. 12, 1950.

Syllabus by the Court.

1. For the purpose of testing the sufficiency of a petition, a demurrer thereto admits the truth of all facts well pleaded together with all inferences which may be drawn therefrom, and the petition is to be liberally construed in favor of the plaintiff.

2. Where plaintiff was not entitled as a matter of law to recover under the facts alleged in petition, demurrer thereto was properly sustained.

Reuel W. Little, Oklahoma City, James C. Hamill, Madill, for plaintiff in error.

Satterfield & Franklin, Harvey L. Harmon, Oklahoma City, Welch & Welch, Madill, for defendant in error.

JOHNSON, Justice.

The parties will be referred to hereafter as they appeared in the trial court.

Plaintiff filed his petition in the District Court of Marshall County, Oklahoma; the pertinent part thereof being paragraphs two and three which read as follows:

'That on or about the 22nd day of February, 1948, plaintiff was driving his automobile, * * * at about 2:00 a. m. in an easterly direction down the main street of Madill, Oklahoma, and the same collided with a frieght train owned and operated by defendant, which train was running in a northerly direction. As a result of said collision, the automobile of plaintiff was completely demolished; * * * Plaintiff was severely injured. * * *

'At the intersection of Main Street and the railroad tracks of defendant, its right of way is approximately 650 feet wide; there are seven tracks at said point. The railroad bed is on a grade about three feet higher than the road bed on the east and west side thereof. There was and is an unusually large amount of traffic that normally goes over said point of intersection. That practically all the traffic from the west side of Madill, Oklahoma to the east side must pass over said intersection; that the traffic of a road from Madill, Oklahoma to the Cumberland Oil Field intersects with State Highway 199 near said point of intersection. That an unusual and large amount of traffic passes over said point of intersection. In addition thereto, the defendant has and maintains and had at the time of the said collision a large number of boxcars on the various seven tracks at said point of intersection on the north and south side thereof. That by reason of the foregoing, the crossing was and is unusually dangerous. That it was the duty of the defendant to maintain a flagman or a system of automatic bells or other signals to warn people passing said point of intersection and to warn this plaintiff of an approaching train or that a train was on said track. That when plaintiff was crossing said point of intersection, an automobile was approaching from the east going west and there was a strong light kept and maintained by defendant west of track No. 4 and east of track No. 1. That defendant's freight train was moving on track No. 4 and there was stationed on the various tracks a large number of box cars that were standing still. The lights from the automobile approaching from the east going west could be seen through and under the box cars of the moving train and plaintiff could not see and did not see defendant's train until he was within a few feet thereof. That defendant could and should have reasonably auticipated the hazardous situation created at the time of plaintiff's injury. This is because of the grade of approaching street and highway and because of the extremely wide right of way and the seven tracks of railroad, the blinding light between track No. 1 and track No. 4 and approaching automobiles and boxcars standing on other tracks nearby. Defendant did not have a flagman at the point of...