St. Louis & S. F. R. Co. v. Model Laundry, 2692.

CourtSupreme Court of Oklahoma
Writing for the CourtTHACKER, C. PER CURIAM.
Citation141 P. 970,42 Okla. 501,1913 OK 444
Docket Number2692.
Decision Date20 June 1913

141 P. 970

42 Okla. 501, 1913 OK 444

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

No. 2692.

Supreme Court of Oklahoma

June 20, 1913

On Rehearing, July 15, 1914.

Syllabus by the Court.

It is not error to overrule defendant's demurrer to evidence and motion to instruct verdict, where there is evidence reasonably tending to prove negligence on its part proximately causing injury to plaintiff's automobile at railroad crossing, notwithstanding and without regard to evidence of contributory negligence on part of plaintiff, in view of section 6, art. 23 (section 355, Williams') Constitution.

Where defendant was backing its mail car in conscious excess of speed limit of city ordinance, in making a street crossing, without flagman or lookout, other than a pilot, in door on inner side of curve in its track where such crossing is approached, who could not see object on opposite side of track nearer than within 35 or 40 feet of end of such car, where there is some negative evidence of failure of defendant to give requisite crossing signals and positive evidence that both whistle and bell signals were given, where evidence for plaintiff was that in approaching the crossing from such opposite side at a speed of 4 or 5 miles per hour the driver of its automobile, when within about 20 feet of crossing, looked, without obstruction to his view for a distance of certainly not less than 200 and probably 300 or 350 feet, in the direction from which said car approached the crossing, where neither the driver nor his companion in the automobile testified specifically whether he looked as far in that direction as the unobstructed condition of the track permitted, where, after looking in that direction and seeing no approaching train, the driver and his companion gave their attention to an engine apparently threatening to approach the crossing from the opposite direction, until, while commencing to go over defendant's track as slow as could be done and in an oblique direction in deference to previously well-known cavity between timbers on inner sides of rails and rough condition of crossing, the driver and his companion again looked in direction from which the car approached, and, discovering same a distance of 50 or 80 feet away, attempted to get the automobile off the track onto the side from which it was approached, but, being delayed by one or both front wheels being caught in said cavity, failed to do so until mail car struck rear end of automobile and demolishes same, throwing débris onto said side of track, and where no attempt is made to slow down or stop train until automobile is knocked from track, and where driver of automobile would have had 34 seconds in which to have made crossing from where he first looked in direction from which mail car approached if same was then nearly 300 feet away and approached within said speed limit, and where he would have had only a little more than a fourth of such time if said car approached said crossing at the highest speed stated by any witness, it was for the jury to say, under proper instructions, whether defendant was guilty of negligence proximately causing the injury; and the court did not err in overruling demurrer to the evidence nor in refusing to peremptorily instruct verdict for defendant.

Where the evidence tended to show the facts stated in the second subdivision of the syllabus, and that the perilous situation of plaintiff's automobile was discovered by defendant in time for the latter to have avoided the collision therewith and the resultant injuries thereto, the court did not err in submitting to the jury the question of "discovered peril" as a ground upon which plaintiff might recover notwithstanding they might find him guilty of contributory negligence.

Where a defendant willfully and wantonly is guilty of negligence, proximately causing an injury, a plaintiff's contributory negligence does not bar his right to recover; and, where the evidence tends to show the facts stated in the second subdivision of the syllabus, it was not reversible error for the court to submit to the jury under proper instructions the question as to whether plaintiff might recover upon this theory of the case.

The degree of care required of a traveler in making a railway crossing is that degree which a prudent person, in the same situation and under the same conditions, would ordinarily exercise, and, although its constituent elements may vary with variations in such situations and conditions, the care required is the same degree in all cases; and the driver of an automobile is not required to exercise a higher degree of care than a prudent person on foot or in a different conveyance would ordinarily exercise, whatever may be the difference in character or extent of the precautionary measures required of him to constitute that degree.

It is not reversible error to refuse a requested instruction embodying a correct proposition of law that is fairly embraced in another instruction given by the court.

Where the evidence tends to show the value of the property to have been from $1,000 to $1,200 before the injury, and practically nothing thereafter, but where such evidence is not such as to preclude any doubt as to such valuations, and where the verdict is for only $550, a defendant against whom such verdict is given is not entitled to a new trial upon the ground that such verdict was evidently the result of compromise.

The principle requiring a verdict to be set aside which cannot be justified upon any hypothesis that is presented by the evidence in respect to the amount of same applies only to cases where the damages sought to be recovered are liquidated; and a verdict for unliquidated damages in an amount less than any evidence tends to show will not be set aside upon the ground that it was the result of compromise not otherwise shown.

An inference from testimonial evidence is permissible to the jury when, and only when, it is a probable or natural hypothesis or explanation of such evidence, and when the other hypotheses or explanations are either less probable and natural or at least not exceedingly more probable or natural.

An inference from uncertain testimonial evidence is not ordinarily, if at all, permitted to be drawn by the jury; and an inference cannot ordinarily, if at all, be predicated upon a fact the existence of which rests upon a prior inference; but a legitimate inference must have as its base testimonial evidence that is certain, and should be based immediately thereon.

An inference of actual discovery of peril in time to have avoided, by the exercise of ordinary care, the collision of the railroad car and an automobile at a railroad crossing, predicated alone upon the facts stated in the body of this opinion, and contradicted by the otherwise unimpeached and positive testimony of the only person to and through whom it is sought to be imputed, is too improbable and wanting in reason to warrant the submission of the question of such discovery and of liability based thereon to the jury.

Commissioners' Opinion, Division No. 1. Error from Superior Court, Oklahoma County; A. N. Munden, Judge.

Action by the Model Laundry, a corporation, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded on rehearing. (W. F. Evans, of St. Louis, Mo., on the brief), for plaintiff in error.

Moss, Turner & McInnis, of Oklahoma City, for defendant in error.


Section 6, art. 23 (section 355, Williams') Constitution of Oklahoma, reads:

"The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall at all times, be left to the jury."

That these defenses are questions of fact for the jury, and that the verdict of the jury is conclusive as to the fact of their existence or nonexistence, see the following cases: Chicago, R.I. & P. Ry. Co. v. Beatty, 27 Okl. 844, 116 P. 171; Independent Cotton Oil Co. v. Beacham, 31 Okl. 384, 120 P. 969; Ph nix Printing Co. v. Durham, 32 Okl. 575, 122 P. 708, 38 L. R. A. (N. S.) 1191; Chicago, R.I. & P. Ry. Co. v. Hill, 36 Okl. 540, 129 P. 13, 43 L. R. A. (N. S.) 622; Dewey Portland Cement Co. v. Blunt, 38 Okl. 182, 132 P. 659.

In view of the foregoing statement of the law as to the issue of contributory negligence, we should eliminate this defense in discussing defendant's first specification of error, in that the court overruled its demurrer to plaintiff's evidence and its second specification, in that the court refused to direct a verdict; but in stating the facts we may nevertheless incidentally state some relating only to this defense.

Under the evidence, which is conflicting on many points, it may be assumed that the jury found that the evidence in favor of plaintiff tended to prove facts as follows: That Francis street runs north and south, and defendant's track and right of way in Oklahoma City approaches same on a gradually decreasing curve from the southwest, and crosses it with very slight curvature at an angle of perhaps not more than 15 or twenty degrees north of a due east and west line. That the south line of First street, running east and west, intersects the north line of defendant's right of way about 47 feet from its track and at a point about 210 feet a little south of west from this crossing, and proceeds thence with the curvature of the right of way and track in a northeasterly direction to Francis street at a point about 47 feet north of the crossing. That there was a heavy timber on each side of each rail of defendant's track at this crossing, and that same were worn and, in at least one instance, cupped. That there was a cavity of considerable depth between the two inner timbers, so that crossing in an automobile, such as the one in question here, was difficult, and required not only the utmost reduction of speed, but an...

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