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

Decision Date13 June 1916
Docket Number3608.
Citation159 P. 336,58 Okla. 84,1916 OK 667
PartiesST. LOUIS & S. F. R. CO. v. BELL.
CourtOklahoma Supreme Court
Concurring Opinion June 29, 1916.

Syllabus by the Court.

In a suit in damages for personal injuries, based upon the theory that defendant had failed to restore a highway to its former state or to such a condition that its usefulness would be materially impaired, in violation of Comp. Laws 1909, §§ 1360, 7498, evidence examined and held that, as there was evidence reasonably tending to prove the condition of the highway at the place of the accident, prior to the construction of the crossing at which the injury occurred and that the same had not been restored, the court did not err in submitting the question of whether it had been restored to the jury. Held, further, that section 7498, supra, was applicable to a railway crossing constructed subsequent to its enactment.

The contributory negligence of the chauffeur cannot be imputed to one who is traveling in the vehicle with him by invitation of the owner of the car. To render one liable for the negligence of the chauffeur, either the relation of master and servant or principal and agent must exist, or the parties must be engaged in a joint enterprise, whereby responsibility for each other's acts exists.

Parties cannot be said to be engaged in a joint enterprise, within the meaning of the law of negligence, unless there be a community of interests in the objects or purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control or management.

In a suit in damages for personal injuries, where the evidence discloses that, at the place of the injury, defendant's track runs practically east and west and intersects the public highway at right angles on about a 5-foot grade; that the highway is carried over the railroad on a crossing, and slopes back on both sides of the track for a distance of some 20 feet; that about that distance south and parallel to the track, and some three or four feet under the surface of the highway, defendant had placed a culvert, consisting of pipe about 18 inches in diameter and about 25 feet long, for the purpose of conveying the water from the hills south and east of the railroad into a creek some 40 or 50 feet from its west end; and where, at the time of the injury the water, in flowing through the culvert and falling from the west end of the pipe, had made a hole some 20 or 30 feet in diameter down to the level of the water in the creek, a distance of some 18 feet, and had caused the dirt over that end of the pipe to sink and encroach upon the highway to such an extent that while the wagon track of the highway ran straight from the crossing up to the hole, it deflected to the left around the hole which was obscured by weeds and undergrowth, and where on the day of the injury, deceased and two others were riding as guests of the owner in the back seat of an automobile going south along this highway; that over the chauffeur, in the front seat, he had no control; that the car mounted the crossing between the rails of defendant's railroad slowly and a little to the west of the traveled way; that, after the front wheels had crossed the south rail, the chauffeur, having dropped the magneto key on the floor of the car, with his right hand still grasping the steering wheel, reached to pick it up and that, while so doing, he deflected the car so far to the right as to run to the edge of the hole, where it slipped on the crumbling earth and fell into the hole, and in falling turned over and killed deceased-- held, that the negligence of defendant in leaving the hole in the highway was the proximate cause of the injury.

Where the negligence of defendant and the act of a third person concur to produce the injury complained of, so that it would not have happened in the absence of either, the negligence is the proximate cause of the injury.

That part of the charge which made it the absolute duty of defendant to keep the hole in question "free from weeds, brush, or other obstruction, or to erect such barriers as would reasonably be calculated to prevent the driving or falling in such hole by persons traveling that highway," was not error in that it placed too high a degree of care on defendant.

On the undisputed facts in this case, the question of imputed negligence was one of law for the court and not a question of contributory negligence required to be left to the jury as a question of fact, by Const. art. 23, § 6.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by Harriett Alma Bell against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

W. F. Evans, of St. Louis, Mo., and R. A. Klienschmidt and J. H. Grant, both of Oklahoma City, for plaintiff in error.

Harris & Nowlin, of Oklahoma City, for defendant in error.


On December 21, 1910, Harriett Alma Bell, widow of Fred Bell, deceased, for herself and Mary Alma Bell, their only child, in the district court of Oklahoma county, sued the St. Louis & San Francisco Railroad Company in damages for personal injuries resulting in the death of the said Fred Bell. The petition as amended, after alleging the corporate existence of defendant and that on October 28, 1910, it was operating a line of railroad in this state through Spencer to Oklahoma City, substantially states that on said day deceased was riding as a guest in an automobile driven by one Du Bose along the public highway; that, after the car had crossed defendant's tracks at right angles going south on a crossing one-half mile west of Spencer, and while descending the south side of its roadbed, the driver of the car ran it upon the brink of a hole in the highway, negligently left open by defendant in violation of the statute, and into which it fell and in falling overturned and killed said Bell, to her damage and that of her child in a sum certain. For answer, defendant, after a general denial, alleged that the injury, if any, was the result of the negligence, not of defendant, but of the driver of the car and also the contributory negligence of deceased. After reply filed, in effect a general denial, there was trial to a jury and judgment for plaintiff, and defendant brings the case here.

At the close of all the evidence the court, in effect, instructed the jury (No. 5) that it was the duty of defendant in constructing a crossing for its railroad over a public highway to restore the highway to its former state, or to such a condition that its usefulness would not be materially impaired, and thereafter maintain the same in such condition against any effects in any manner produced by the railroad. He also told the jury that it was the further duty of defendant to construct a crossing across that portion of its tracks, roadbed, or right of way over which any public highway may run, and maintain the same, unobstructed, in a good condition for the use of the public, and to build and maintain in good condition all culverts that may be necessary on its right of way at such crossings, and that a failure so to do was negligence. No complaint is made that such is not the law, but it is assigned that the evidence was insufficient to support the charge, in that there was no evidence reasonably tending to prove the condition of the highway at the place of the accident, prior to the construction of the crossing, and hence none to show that it had not been restored within the contemplation of Comp. Laws 1909, § 1360. There is no merit in this contention for the reason that the evidence, considered with the photographs, discloses that, prior to the construction of this crossing, the road, at the precise point where the injury occurred, instead of being a hole was a fairly level well-traveled public road upon a section line. Neither is there merit in the contention that the charge was inapplicable for the reason that the crossing in question was already established before section 7498 of Comp. Laws 1909 was passed. This for the reason stated in City of Yonkers v. N.Y. C. & H. R. Co., 165 N.Y. 142, 58 N.E. 877, where the court, construing a similar statute in view of a like contention, said:

"It is quite true, as the learned counsel for the defendant contends, that this statute is prospective in its operation. It had no application to proceedings in the court pending prior to its enactment. * * * It is quite clear, however, that it is not limited in its application to railroads, constructed subsequent to its enactment, or to bridges over crossings thereafter constructed. It was manifestly intended to apply to objects in existence at the time of its enactment, and consequently to all bridges constituting the highway at railroad crossings, whether constructed after the law went into effect or before. The purpose of the statute was to insure greater safety at such highway crossings, and that object could not be effected without applying the law to all such bridges existing at the time that it went into effect, without regard to the date of their construction."

See, also, Bush v. D., L. & W. R. R. Co., 166 N.Y. 210, 59 N.E. 838.

Continuing, the court, in the same instruction, charged:

"* * * And if you find and believe from a preponderance of the evidence that the defendant railway company failed in the performance of any of its duties as above outlined, and that by reason thereof such a condition was created, caused, or permitted to exist at said crossing, and on said right of way, as that the said Fred Bell lost his life on or about the date mentioned in plaintiff's petition, and that but for the existence of

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