St. Louis & S. F. R. Co. v. Clark

• Decision Date: 12 May 1914
• Docket Number: Case Number: 2902
• Citation: 142 P. 396,1914 OK 236,42 Okla. 638
• Parties: ST. LOUIS & S. F. R. CO. v. CLARK.
• Court: Oklahoma Supreme Court

1914 OK 236

142 P. 396

42 Okla. 638

ST. LOUIS & S. F. R. CO. v. CLARK.

Case Number: 2902

Supreme Court of Oklahoma

Decided: May 12, 1914

Syllabus

¶0 1. APPEAL AND ERROR--Law of the Case--Decision on Prior Appeal. The decisions on all questions of law made by an appellate court on appeal become the law of that particular case, both for the trial court and this court on a second hearing, providing the facts presented in the second hearing, on the point formerly decided, are substantially the same as in the first hearing.

2. SAME. The facts in the second hearing of this case, on the points decided in the former appeal, are substantially the same as in the first trial; there was not sufficient difference to take the case out of the law announced in the first appeal.

3. NEGLIGENCE--"Last Clear Chance." The doctrine of "last clear chance" is recognized by the courts as an exception to the general rule that the contributory negligence of the person injured will bar a recovery, without reference to the degree of negligence on his part; and under this exception to the rule the injured person may recover damages for an injury resulting from the negligence of the defendant, although the negligence of the injured person exposed him to the danger of the injury sustained, if the injury was more immediately caused by the want of care, on the defendant's part, to avoid the injury, after discovering the peril of the injured person.

4. RAILROADS--Crossing Accident--Sufficiency of Evidence--Negligence. The evidence in this case was sufficient to take the case to the jury on the question of defendant's negligence and plaintiff's contributory negligence. See former opinion, 24 Okla. 764, 108 P. 361, 2 syllabus.

Error from District Court, Comanche County; J. T. Johnson, Judge.

Action by James H. Clark against the St. Louis & San Francisco Railroad Company, a corporation. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

See, also, 24 Okla. 764, 108 P. 361.

W. F. Evans and R. A. Kleinschmidt, for plaintiff in error

J. L. Hamon and Charles Mitschrich, for defendant in error

BREWER, C.

¶1 This is an action to recover damages occasioned by the collision of a train with defendant in error's wagon at a railroad crossing in the town of Cache. The cause arose and was tried first in the district court of Oklahoma Territory, at which trial the judge held that under the evidence the plaintiff was not entitled to recover. Clark, the plaintiff below, prosecuted, an appeal to the Territorial Supreme Court, where the same was pending on a petition for rehearing at the time of statehood, and this court, in an opinion by Mr. Justice Kane, reported in 24 Okla. 764, 108 P. 361, reversed the action of the trial court in sustaining a demurrer to plaintiff's evidence, and remanded the cause for a new trial. Two points were urged on the former appeal, and were disposed of by the court: (1) Was plaintiff guilty of contributory negligence? and (2), if he was, is he entitled to the benefit of the doctrine of the last clear chance? Both these points are argued here again, together with certain other minor propositions incidental to them. In the former opinion the court held, briefly stated, that under the evidence in the case the trial court had no right to say, as a matter of law, that the plaintiff's negligence prevented a recovery, and on the second point the court held that under the evidence the humanitarian rule, perhaps more generally referred to as the doctrine of "the last clear chance," was not involved and had no application. The statement of the case and all the evidence in the former opinion is so comprehensive and full of details that we do not consider it necessary to repeat them here. There was some difference in the testimony in the last trial from that shown in the first, and this we will notice later on, but these differences, in our judgment, are not of sufficient consequence to require us to go again into a detailed analysis of the evidence presented.

¶2 1. As to whether or not plaintiff's act in driving upon the railroad crossing was negligent, so as to prevent a recovery, the court held in the former opinion as follows in the syllabus:

"In an action to recover damages for alleged negligence whereby the plaintiff was injured at a railroad crossing, it appeared: That the plaintiff at the time of the accident was driving north on a street in a village towards the railroad crossing, in a farm wagon covered with a wagon sheet, the corners of the sheet being tied down at each end. At the point of collision the railroad track runs east and west, the street running north and south. The plaintiff was driving a team of gentle horses, and was traveling about three or four miles an hour. As he approached within about 50 feet of the crossing, he stooped forward, looked up and down the track, and listened for approaching trains, but did not see or hear any. That from the place where he looked and listened he could see the track to the east, the direction from which the train was coming, for a distance of 500 or 600 feet, the view beyond that being obstructed by a section house which stood east of the street on which he was traveling and near the track. That after he looked and listened he sat down on the wagon seat, which was eighteen or twenty inches under the wagon sheet, and drove on towards the crossing in an ordinary walk, and continued at this pace until his wagon was struck by the train. That he knew the crossing was there, having crossed it several times before. That his hearing and eyesight are fairly good. That before the accident the bell of the engine did not ring, neither did the whistle blow. That he did not see any part of the train or engine, and did not know there was a train approaching until he was struck. That the train was about two and one-half hours late, and was running at the rate of 30 or 40 miles an hour and no effort was made to stop it before the collision occurred. Held, that the question of negligence on the part of the defendant and contributory negligence on the part of the plaintiff were questions of fact for the jury, and it was error for the court below to sustain a demurrer to such evidence."

¶3 2. As to the applicability of the doctrine of the last clear chance the court held in the body of the opinion as follows:

"On the second proposition we are satisfied, as the case now stands, the doctrine of last clear chance or the humanitarian doctrine, as it is called by Mr. White in his work on Personal Injuries on Railroads (section 398), has no application to it. The admitted facts do not bring it within the rule laid down by this court in A., T. & S. F. Ry. Co. v. Baker, 21 Okla. 51, 95 P. 433 . We think the statement of the rule quoted approvingly in Railway Co. v. Baker, supra, from Highland Ave. & B. R. Co. v. Sampson, 91 Ala. 560, 8 So. 778, is the correct one, and are constrained to adhere to it in the case at bar. The rule laid down in the Highland case is to the effect that: 'If plaintiff, injured in a collision at a railroad crossing, used due diligence after discovering his peril, he can recover, though he was negligent in not stopping and listening, provided defendant, after seeing the danger failed to use due care.' In the case at bar there was no evidence tending to prove that the engineer in charge of defendant's engine discovered the peril of the plaintiff until the accident occurred. The mere fact that the engineer may have seen the plaintiff approaching the track in a covered wagon would not necessarily put him on his guard as to the peril of the plaintiff. The engineer has the right to presume that a person thus approaching the track has not omitted the ordinary precautions imposed upon him by law, and will stop in time to avoid an injury. But when the engineer sees the plaintiff approaching the track, apparently unconscious of his danger or unable to extricate himself therefrom, the

...