St. Louis-S. F. B. Co. v. Pufahl
| Decision Date | 28 May 1935 |
| Docket Number | Case Number: 24598 |
| Citation | 172 Okla. 449,1935 OK 614,45 P.2d 729 |
| Parties | ST. LOUIS-S. F. B. CO. v. PUFAHL, Adm'r. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Review--Sufficiency of Evidence to Support Verdict.
In a civil action, triable to a jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial errors of law are shown in the instructions of the court or its rulings on law presented during the trial, the verdict and finding of the jury will not be disturbed on appeal. ( Antrim Lumber Co. v. Neal et al., 172 Okla. 292, 44 P.2d 939.
2. Same--Railroads--Action Against Railroad for Wrongful Death of Passenger in Automobile Occurring in Collision at Highway Crossing--Verdict for Plaintiff Sustained.
Record examined, and evidence found sufficient to support the verdict of the jury.
Appeal from District Court, Bryan County; Porter Newman, Judge.
Action by Herman Pufahl, administrator of estate of J. E. Ganstine, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
E. T. Miller and Cruce & Franklin, for plaintiff in error.
Bailey & Hammerly and C. C. Hatchett, for defendant in error.
¶1 The parties to this action will be referred to as plaintiff and defendant, as they appeared in the court below.
¶2 This suit was filed on the 20th day of April, 1932, in the district court of Bryan county, Okla., by the above-named plaintiff, as administrator of the estate of J. E. Ganstine, deceased, for damages in the sum of $ 40,000, alleged to have been sustained by the wife and children of said deceased, by reason of the wrongful death of said deceased, as a result of which the plaintiff obtained a judgment of $ 12,525.
¶3 On April 22, 1932, a companion case was filed by said plaintiff, identical in all respects with the above case, except the plaintiff in said action prayed for damages on behalf of said estate for pain and suffering of said deceased, prior to his death, funeral and medical expenses, and hospital and doctor bills. This last-named suit was brought for the sum of $ 2,900, as a result of which plaintiff obtained a judgment in the sum of $ 613.85, of which $ 80.91 was remitted by plaintiff.
¶4 After the issues of the two suits were joined, they came on for trial, and by agreement of the parties and order of the court below, the two causes were tried together on exactly the same record; however, two verdicts were returned by the jury and separate judgments entered by the court and separate appeals have been prosecuted to this court. As the trial record of the two cases is exactly the same, counsel have agreed that the brief and argument be presented to this court in this, the death case, and that the brief filed herein be considered by this court in 172 Okla. 452, 45 P.2d 733, which is the appeal in the other case, as above described.
¶5 As both plaintiff and defendant agree, there is little dispute as to the facts in this case. About the only controversy as to facts which is material is relative to the speed at which the train was traveling and the efforts made by the engineer to warn by blowing the whistle or ringing the bell. It appears that on December 28, 1931, one J. E. Ganstine was riding as an invited guest in a Ford, a one-seated, automobile owned and driven by D. S. Miser; they were in the city of Durant, Okla., traveling south on Ninth street; that the Frisco railroad runs parallel to Main street in Durant, and about one block south of Main street; that Ninth street intersects Main street; that two of the most heavily traveled highways in the state of Oklahoma are Jefferson Highway, officially known and designated as United States Highway No. 73, and Highway 75; that these highways turn off Main Street in Durant onto Ninth street, and proceed south one block, where the highways cross the railroad of the defendant company, and continue on south over a paved highway to the Denison free bridge, across Red river and into Texas.
¶6 That the deceased, riding as a guest passenger in Mr. Miser's automobile, at about 10:30 o'clock a. m. on the aforesaid date, was traveling south on this highway, being Ninth street in Durant having turned into such highway from said Main street. That it is a distance of about one block from the intersection of Ninth and Main streets to the said railroad crossing. Ninth street is 18 feet wide, and paved with concrete. Traveling south from Main street, as you approach the railroad crossing, it is down grade. While in a populous area of the city of Durant, there are no sidewalks constructed on either side of the pavement as you approach said crossing. Traveling south on said street and highway, a high embankment arises on one's right, on the west side of Ninth street. Such embankment arises abruptly from the curbing or guttering along the paving where vehicles travel, and this embankment on the west side of said street being from five to eight feet high; the street commissioner testified five and onehalf feet. The embankment continues beyond the property line of individual owners of property and extends out upon the railroad right of way a distance of 18 to 20 feet; from the end of this embankment to the rails of the main liner track of the defendant company over which said train was traveling, it is approximately 20 to 25 feet.
¶7 Again, it is undisputed that Miser and the deceased approached the track upon which the train was running, at a speed from 10 to 12 miles per hour; that Miser looked to the left and saw no train approaching, and was unable to hear or see the train approaching from the right on account of the embankment which obscured his view of the track. That as he was on the right of way, approaching the end of the embankment, he accelerated the speed of the car to about 15 miles per hour. As he emerged beyond the embankment he first heard the bell and saw the train approaching, and it was about 50 feet away at that time; that he swerved the car to the left, but he was unable to make the short turn and the collision occurred which resulted in the death of the deceased. There is some dispute as to the speed of the approaching train. The motorman estimated the speed at from 15 to 18 miles per hour, while Miser estimated it was moving at the rate of 40 to 50 miles per hour. Other witnesses estimated the speed at about 25 to 30 miles per hour. The engineer testified that he did not see the automobile at any time until after the collision, when his attention was called to it by the breaking of glass in the compartment where he was stationed. He further testifies that he applied the emergency air brakes immediately following the collision, and put on the sand; that the brakes were working, all wheels being equipped with air brakes, and that he did everything that was possible to stop the train, which consisted of a motor combination car and one coach. Others testified that he stopped the train 250 or 275 feet below the crossing. Another witness puts the distance at over 300 feet. The undisputed evidence is that the train dragged the car the full distance.
¶8 The petition alleges that the said crossing is located at a thickly and densely populated portion of the city of Durant in Bryan county, Okla., being in practically continuous use by an extremely large number of motor cars and vehicles, and that the collision between the train and the car in which the deceased was riding was brought about and caused by the carelessness and negligence of the defendant company, in the following particulars, to wit:
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