St. Louis-S. F. Ry. Co. v. Ford

• Decision Date: 08 October 1929
• Docket Number: Case Number: 19044
• Citation: 1929 OK 421,281 P. 248,139 Okla. 64
• Parties: ST. LOUIS-S. F. RY. CO. v. FORD.
• Court: Oklahoma Supreme Court

1929 OK 421

281 P. 248

139 Okla. 64

ST. LOUIS-S. F. RY. CO. v. FORD.

Case Number: 19044

Supreme Court of Oklahoma

Decided: October 8, 1929

Syllabus

¶0 1. Negligence--Necessity for Instruction on Proximate Cause of Injuries.

To constitute actionable negligence, it must be averred and proved that the negligence complained of was the proximate cause of the injury received, and an instruction which authorizes a recovery on account of personal injuries sustained, without requiring the jury to first find that the negligence complained of is the proximate cause of the injury sustained, is erroneous.

2. Same--Question of Contributory Negligence for Jury Alone.

"Under section 6, art. 23, Constitution of Oklahoma, the jury alone can determine whether such facts as they find to exist constitute contributory negligence, and it is not error for the trial court to refuse to instruct the jury that a certain state of facts, if found to be true, constitute contributory negligence." St. Louis-San Francisco Ry. Co. v. Russell, 130 Okla. 237, 266 P. 763.

3. Railroads--Action for Injuries to Traveler in Collision at Crossing--Refusal to Instruct That Railroad Owed No Duty to Place Watchman at Crossing, Held not Error.

In an action against a railway company on account of personal injuries received in a collision with a locomotive at a public crossing, it being alleged that the injury was proximately caused by negligence on the part of defendant in placing a string of box cars on a side track near the crossing so as to obstruct the view and hearing of one approaching the crossing, and in failing to have a flagman or watchman at said crossing, it was not error for the trial court to refuse to instruct the jury that no duty rested upon defendant to place a watchman or flagman at said crossing to prevent injury to travelers on the highway.

Commissioners' Opinion, Division No. 2.

Error from District Court, Creek County; Thomas S. Haris, Judge.

Action by F. A. Ford against the St. Louis-San Francisco Railway Company. Judgment for plaintiffs, and defendants appeals. Reversed.

E. T. Miller, Cruce & Franklin, and Grey W. Satterfield, for plaintiff in error.

Frank P. Smith, for defendants in error.

JEFFREY, C.

¶1 This is an action by plaintiff, F. A. Ford, to recover damages on account of injury to his person and automobile growing out of a collision with a train operated by the defendant, St. Louis-San Francisco Railway Company. Plaintiff, while traveling on the public highway between Claremore and Tulsa, collided with a through freight train of the defendant company at a highway crossing approximately 200 yards west of the railway station at Verdigris. Defendant's railroad runs in an easterly direction through the town of Verdigris, and the highway runs in the same general direction. It parallels the railroad along the south side thereof through Verdigris, and for some distance east. About 200 yards west of defendant's station the highway crosses defendant's tracks at approximately right angles. Plaintiff approached the railroad crossing from the east. He and one Charles Bailey were riding in an open Ford automobile. The automobile belonged to plaintiff, but was being driven by Charles Bailey. Plaintiff's automobile was practically destroyed, and he sustained severe injuries, but it is not necessary to describe them in detail or the extent thereof since the amount of the verdict is not here challenged. The injury occurred on September 4, 1924, in Rogers county, and this action was commenced February 23, 1926, in the superior court of Creek county, and later transferred to the district court of said county. The grounds of negligence upon which plaintiff predicated his action, were the placing of a string of box cars on a side track near the highway crossing so as to obstruct the view and hearing of plaintiff, excessive and dangerous speed of the train, the failure of the defendant to place a flagman or guard at the crossing, and the failure of the defendant's train crew to give the statutory signals before making the crossing. Defendant denied generally the allegations of the petition, and pleaded contributory negligence. The case was tried to a jury and a verdict was returned in favor of plaintiff in the sum of $ 2,000. Judgment was duly rendered on the verdict, a motion for new trial overruled, and defendant has appealed.

¶2 The first assignment of error is that the verdict of the jury is not supported by sufficient evidence. Plaintiff testified that on the date of the injury, he was traveling in a westerly direction in his automobile, driven by Charles Bailey, on the main highway between Claremore and Tulsa; that just before he arrived at Verdigris, he had to detour off the main highway, but came back onto the highway about 150 or 200 yards east of the highway crossing; that he traveled due west from that point until he arrived directly south of the crossing; that he observed a long freight train on the side track between him and the main track; that when he arrived directly south of the crossing where the highway turned at a right angle north to the railroad crossing, he discovered that the freight train was cut at the crossing. It appears from the record that that part of the highway traveled immediately prior to turning north over the railroad crossing parallels the railroad, and that the distance between the highway and railroad tracks is approximately 100 feet. He testified that the opening between the cars at the crossing was 18 or 20 feet. He further testified that when his car approached the crossing, it slowed down to seven or eight miles per hour, and that he looked and listened, but did not see or hear anything that indicated danger; that the car proceeded to pass between the freight cars in a slow and careful manner, and just as they arrived along the north line of the freight cars, they observed the through freight train directly on them coming from the east. Plaintiff testified that his car was then eight or nine feet from the main tracks on which the freight train was traveling; that Bailey tried to stop, but that the distance was too short, and that the moving train was too near. Witness Bailey testified to almost identically the same state of facts. Both plaintiff and Bailey testified that they slowed down to a very slow rate of travel and looked and listened before proceeding to drive between the box cars an either side of the crossing; that the box cars obstructed their view so that they could not see a train on the main track until they had arrived within eight or nine feet of said tracks; and that they did not hear any whistle or bell or other signal indicating that a train was approaching. On this point, about 19 witnesses testified for defendant that the approaching train did give the signals, as required by law. Under this state of facts, counsel for defendant says that plaintiff's evidence is negative in character, not sufficient to overcome the positive testimony of so many witnesses that the signals were given, and is not sufficient to raise an issue on this point for the consideration of the jury. This question, was decided against defendant in the recent case of St. Louis-San Francisco Railway Co. v. Russell, 130 Okla. 237, 266 P. 763. It was there held, as in many prior decisions of this court, that the evidence to the effect 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. Such testimony is open to question only as to its relative value, depending upon whether the witness was in a position to hear and the amount of attention he gave to the matter of giving signals. Of course, where it appears that a witness was so situated that he could not have heard a signal had it been given, his testimony that he did not, hear a signal would have no evidentiary value on the point. See, also, Wichita Falls & N.W. R. Co. v. Groves, 81 Okla. 34, 196 P. 677; St. Louis & S. F. Ry Co. v. Rundell, 108 Okla. 132, 235 P. 491; St. Louis-San Francisco Ry. Co. v. Robinson, 99 Okla. 2, 225 P. 986; Zenner v. Great Northern Railroad Co., 135 Minn. 37, 159 N.W. 1087.

¶3 The case of Union Railway v. Houk, 109 Okla. 187, 235 P. 499, is cited by counsel for defendant as sustaining the rule contended for by them. There are facts and circumstances in that case indicating that the witnesses, who testified that they did not hear the signals given, were so situated that they would not likely have heard, had the signals been given as required by law, and also facts and circumstances indicating that very little attention was paid to the matter of giving signals. The evidence of such witnesses no doubt was of but little value as compared with the testimony of witnesses who were in position to hear and did hear the signals given, but it appears from some of the language employed that the holding turns on the negative form of the testimony. To that extent the opinion is not in accord with the weight of authority in this jurisdiction. The facts in that case were quite different from the facts in the case...