Sand Springs Ry. Co. v. Mcwilliams

• Decision Date: 10 April 1934
• Docket Number: Case Number: 20394
• Citation: Sand Springs Ry. Co. v. Mcwilliams, 38 P.2d 539, 170 Okla. 85, 1934 OK 233 (Okla. 1934)
• Parties: SAND SPRINGS RAILWAY CO. v. MCWILLIAMS.
• Court: Oklahoma Supreme Court

1934 OK 233

38 P.2d 539

170 Okla. 85

SAND SPRINGS RAILWAY CO. v. MCWILLIAMS.

Case Number: 20394

Supreme Court of Oklahoma

Decided: April 10, 1934

Syllabus

¶0 1.Negligence--Negligence of Driver of Automobile not Imputed to Companion Suing Railroad for Injuries Received in Collision Where Defendant Shown Negligent.

In the absence of the relation of master and servant or principal and agent or unless the parties are engaged in a joint enterprise whereby each is responsible for the acts of the other, the negligence, if any, of the driver of an automobile will not be imputed to one who is riding in said automobile as a friend, guest, companion, or invitee of said driver, where such friend, guest, companion, or invitee is injured in a collision between an engine operated by defendant and said automobile, where there is a showing of primary negligence on the part of said defendant.

2.Evidence--Action by Occupant of Automobile Against Railroad for Injuries Received in Collision--Testimony of Witness That He Did not See or Hear Proper Signals Given Held not Negative in Character.

Where a witness testifies that he was near the point of collision between an automobile and a switch engine and did not see or hear the proper signals given, and was in a position to see and hear said signals if they had been given, said testimony is negative in form, but not negative in character, and is a positive statement of fact.

3.Railroads--Instruction on Doctrine of Last Clear Chance Held not Error.

Record examined, and held, that the trial court did not err in submitting to the jury an instruction on the doctrine of last clear chance.

Application for Leave to File Second Petition for Rehearing Denied December 18, 1934.

Appeal from District Court, Tulsa County; John Ladner, Judge.

Action by W. B. McWilliams against the Sand Springs Railway Company.Judgment for plaintiff, and defendant appeals.Affirmed.

C. B. Stuart, Chas. A. Coakley, E. J. Doerner, and P. P. Pinkerton, for plaintiff in error.

Breckinridge & Bostick and Moss & Young, for defendant in error.

OSBORN, J.

¶1 This action was commenced in the district court of Tulsa county by W. B. McWilliams against the Sand Springs Railway Company as an action for damages for personal injuries.It is a companion case to the case of Shields v. Sand Springs Railway Co., 150 Okla. 177, 1 P.2d 144.The cause was tried to a jury, which resulted in a verdict for plaintiff in the sum of $ 20,000.From a judgment thereon, defendant has appealed.The parties will be referred to as they appeared in the trial court.

¶2 It appears that the defendant company owned and operated a railway between Tulsa and Sand Springs, and used both steam and electric trains; that it maintained a double track, the trains going west customarily using the north track, and going east, using the south track; that near a station known as Hale the railway intersected a paved highway, which was the principal highway between Tulsa and Sand Springs, and over which there was considerable travel.

¶3 On the night of March 22, 1924, about 9:00 o'clock p. m., plaintiff, in company with three other persons, was traveling in a Ford touring car on said highway and approached the crossing from the south.At that time a rain was falling and the sky was overcast with clouds.When the Ford car reached the south track of the defendant company, it was struck by an electric switch engine, traveling west on the south track.The car was overturned and plaintiff suffered numerous and severe injuries.Since no assignment of error is presented in the brief on the question of excessive damages, there will be no necessity to set out in detail the nature of the injuries.

¶4 At the time of the injury, the Ford car was being operated by one Frank McLean, the owner of the car, a friend of plaintiff.A lady, Mrs. Shields, was occupying the front seat of the car with McLean.The plaintiff and one Mrs. Cheshire were occupying the back seat of the car.

¶5Plaintiff alleges that defendant had placed at the crossing an electric alarm bell that was designed to ring an alarm when cars on either of defendant's tracks were approaching the highway crossing; that, at the time of the collision, one of defendant's passenger cars was standing lighted about 50 yards east of the highway crossing; that for a long time prior to the date of injury, it had been the custom of defendant to use the north track for its cars going from Tulsa to Sand Springs and to use the south track for cars going from Sand Springs to Tulsa, which custom was well known to Frank McLean, the driver of the car, and to plaintiff; that at the time of the injury, the switch engine, which struck the car in which plaintiff was riding, was going to Sand Springs from Tulsa on the south track.It is alleged that the electric alarm bell failed to work and was not ringing at the time plaintiff and his companions approached the crossing.It is further alleged that as the switch engine approached the crossing, the employees of defendant company, in charge thereof, failed to sound a whistle or gong or to give any notice of approach of said engine to said crossing.It is further alleged that defendant failed to use or have a flagman to warn travelers upon the highway of approaching cars or trains on the track.

¶6Defendant denies negligence on its part and alleges that plaintiff was guilty of contributory negligence, which was the proximate cause of the injury, and that plaintiff therefore cannot recover.

¶7Defendant contends that while under the Constitution contributory negligence is a question of fact for the jury, under the record in this case, there is not sufficient evidence as to primary negligence on the part of the defendant to authorize a verdict against defendant.In this connection, the testimony is highly conflicting.There is evidence on the part of the plaintiff that the alarm bell did not work and that no warning was sounded from the switch engine as it approached the crossing on the south track, not customarily used for westbound traffic, while there is positive evidence on behalf of defendant that the electric alarm was working and that ample warning was given by ringing the bell and blowing the whistle as the engine approached the crossing.The rule is well settled in this jurisdiction that in an action at law where the evidence is conflicting, this court will not review the evidence to ascertain where the weight of the evidence lies.If there is any evidence reasonably tending to support the verdict, it will not be set aside.St. Louis & S. F. Ry. Co. v. Russell, 130 Okla. 237, 266 P. 763;St. Louis & S. F. Ry. Co. v. Rundell, 108 Okla. 132, 235 P. 491;Dague v. McCaslin, 81 Okla. 66, 196 P. 696.

¶8Defendant argues that the evidence offered by plaintiff on this point is negative in character and insufficient to overcome the positive testimony of defendant that the proper signals were given.In this connection, certain witnesses, who were approaching the crossing in another car just about the time of the collision, were introduced by plaintiff.These witnesses testified they did not hear the whistle, gong, or bell.Testimony of this character is not negative testimony, where it is shown that the witnesses were in a position to hear and could have heard the signals had they been given.In the case of St. Louis & S. F. Ry. Co. v. Russell, supra, it is said:

"A number of witnesses for defendant testified that the proper signals were given immediately after the train had passed over the Santa Fe crossing.Counsel for defendant say that plaintiff's evidence is negative in character, and is not sufficient to overcome the positive testimony that the signals were given.With this we do not agree.Some of the evidence above referred to is positive in form as well as character.Other evidence negativing the giving of the signals is negative in form, but not purely of a negative character.It has been repeatedly held by this court, and many others, that evidence that one did not hear a signal given, when he was in a position to hear and could have heard had it been given, is not purely negative in character, but is a positive statement of a fact.The value of such testimony depends upon whether the witness was in a position to hear, and the amount of attention he gave the giving of signals.Zenner v. Great Northern Railroad Co.(Minn.)159 N.W. 1087;St. Louis & S. F. Ry. Co. v. Rundell, 108 Okla. 132, 235 P. 491;Wichita Falls & N.W. R. Co. v. Groves, 81 Okla. 34, 196 P. 677;St. Louis-San Francisco Ry. Co. v. Robinson, 99 Okla. 2, 225 P. 986."

¶9Defendant assigns as error the refusal of the trial court to allow the admission of certain testimony to the effect that, immediately prior to the collision, the plaintiff, or other persons in the car, were engaged in singing a certain song of a vulgar nature.Said testimony was offered for the purpose of showing the nature and character of the enterprise in which plaintiff was engaged at the time, and was objected to for the reason that it would prejudice the jury against the plaintiff.We can find no prejudicial error in the court's ruling.The admission of said testimony would probably have tended to prejudice the jury against plaintiff.We have also examined the record and find that the nature and character of the enterprise in which the parties were engaged at the time of the injury was not seriously disputed by plaintiff or his companions, evidence of which the court freely admitted.The record discloses that all of the occupants of the car were drinking.

¶10Defendant contends that the court erred in refusing certain instructions offered on the theory of imputed negligence.The instructions given by the court, in this contention, are as follows:

"12.However, you are instructed that the negligence, if any, of the driver, McLain, is not imputable to the plaintiff, but the plaintiff was bound, himself, to exercise ordinary care for his own

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