St. Louis-San Francisco Ry. Co. v. Rundell

• Decision Date: 03 March 1925
• Docket Number: Case Number: 13304
• Citation: 1925 OK 183,108 Okla. 132,235 P. 491
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. v. RUNDELL.
• Court: Oklahoma Supreme Court

1925 OK 183

235 P. 491

108 Okla. 132

ST. LOUIS-SAN FRANCISCO RY. CO. v. RUNDELL.

Case Number: 13304

Supreme Court of Oklahoma

Decided: March 3, 1925

Syllabus

¶0 1. Appeal and Error--Review of Evidence --Law Actions.

Where, in an action at law, the evidence is conflicting, this court will not review the evidence to ascertain where the weight of the evidence lies, but if there is evidence reasonably tending to support the verdict, it will not be set aside.

2. Railroads--Accidents at Crossings--Lack of Warning--Evidence of Negligence.

Record examined, and held, the evidence was sufficient to submit to the jury the question of negligence of the company in failing to sound the whistle or ring the bell before approaching the crossing.

3. Negligence--Jury Questions -- Contributory Negligence and Assumption of Risk.

Article 23, sec. 6, of the Constitution of Oklahoma is not merely declaratory of the common law, but requires that the defense of contributory negligence and assumption of risk as to questions of fact in all cases whatsoever shall at all times be left to the jury, and the finding of the jury upon this defense is conclusive upon the court.

4. Trial--Instructions on Weight of Evidence.

It is not error for the court to refuse to give a requested instruction, the substance of which advises the jury that they should give more weight to the testimony of a witness who testified positively and affirmatively to a certain state of facts than to a witness who testifies negatively to the same state of facts, where the witnesses appear equally credible. Held, the requested instruction amounted to an instruction upon the weight of part of the evidence, and an attempt to have the court invade the province of the jury.

5. Railroads--Speed at Crossings -- Negligence a Jury Question.

Whether or not, under circumstances existing which make a crossing exceptionally dangerous, the running of a passenger train at the rate of 40 miles, although not in violation of a statute or ordinance, was negligent, is a question of fact for the jury.

6. Same.

The general rule is a rate of speed that would be entirely safe under some conditions may be recklessly dangerous under other conditions, and it is generally held it is for the jury to determine, considering all the facts and circumstances, whether or not the speed, which the train was running was an act of negligence.

7. Same.

Neither the Legislature nor the Corporation Commission can arbitrarily determine in advance what would constitute ordinary care or reasonable prudence in a railroad company at a crossing. Each case must stand upon its own merits, and the question is ordinarily one for the jury to determine.

8. Same--Speed at Country Crossings--Instructions.

An instruction which informs the jury that the law does not require the railroad company to maintain a flagman, automatic signals or bells at a railroad crossing, and leaving it to the jury whether the absence of such precaution on the part of the company is negligence under certain conditions, is not necessarily erroneous, but such an instruction is subject to criticism for the reason that it would be better not to point out in an instruction the particular means to be employed by the company in exercising the degree of care required at country crossings but rather to inform them that if on account of the dangerous character of the crossing and the amount of travel thereon, the statutory signals did not afford reasonably sufficient warning, then such other means, as the evidence showed might be and usually were employed by railroad companies at dangerous crossings, should be used, in order to prevent injury to the traveling public.

9. Same -- Recovery for Negligent Death Sustained.

Record examined and held, there was no error in the instruction given by the court, nor in refusing the instructions requested. Held, further, the evidence is sufficient to support the verdict.

Error from District Court, Lincoln County; Hal Johnson, Judge.

Action by Herbert Rundell, a minor, by next friend, M. S. Rundell, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

W. F. Evans, R. A. Kleinschmidt, Ben Franklin, and Adelbert Brown, for plaintiff in error.

A. N. Boatman, Chas. E. Webster, W. F. Speakman, and Streeter Speakman, for defendant in error.

LESTER, J.

¶1 This action was commenced in the district court of Lincoln county, by Herbert Rundell, a minor, by his next friend, M. S. Rundell, against the St. Louis-San Francisco Railway Company, a corporation, to recover damages for the death of his father caused by one of defendant's trains colliding with an automobile in which deceased was riding, at a public crossing in, Creek county, Okla.

¶2 The allegations of the petition may be summarized as follows: One of defendant's passenger trains struck an automobile in which the deceased and a Mr. Wheeler were riding, killing them both instantly. The collision occurred at a public crossing about half way between the towns of Bristow and Depew. The public crossing was on the main traveled highway between the town of Sapulpa, the county seat of Creek county, Bristow and Depew, over which crossing a great number of people traveled daily. The highway was known and designated as the "Ozark Trail."

¶3 The acts of negligence alleged may be subdivided as follows:

(1) Failure to give the statutory signals.

(2) The crossing was in bad repair.

(3) By virtue of the great amount of traffic over said crossing and the view of an approaching train being obstructed by trees, underbrush, and by a mound or hill, and the poor condition of the crossing, the company was negligent in failing to maintain a flagman, automatic bell, or some other system at said crossing to warn the traveling public of the approach of the train.

(4) The speed the train was running at this particular place, under the facts and circumstances, was excessive.

¶4 The answer of the company was a general denial, and the further plea of contributory negligence.

¶5 A brief statement of the facts may be summarized as follows:

The deceased and a party by the name of Wheeler were in a Ford automobile on the west side of the railroad track traveling east toward the railroad crossing on the Ozark Trail, at a rate of about 20 or 25 miles per hour. The said crossing passed through and over the Ozark Trail, a public highway over which a large number of people crossed daily. The highway on the west leading toward the railroad track was down grade, and the road to the right of way was in very good condition. When the automobile reached the right of way, it slowed down and almost stopped. The distance from the track to the west line of the right of way is practically 50 feet. The approaches over the track were in bad condition; in the approach from the west there was a small ravine, ditch, or depression in the ground close to the west side of the right of way, and from the bottom of this low place to the track was an incline of about three feet. The condition of this portion of the approach was such that a person traveling in an automobile when reaching the right of way was required to shift gears on account of the low place and the roughness of the approach and crossing. As the deceased and Wheeler reached the right of way, Mr. Smiley and family were in a Ford Sedan car, which was standing still and across the right of way on the east side of the track. The Smileys waived or motioned to the deceased and Mr. Wheeler for the purpose and intent of advising them of the approach of the train. It was practically impossible for two cars to pass each other on the crossing or approaches thereto, and it was necessary for one to wait while the other crossed. There is another inference that can be drawn from the testimony, that the deceased and Wheeler misunderstood the signalling of the Smileys to be an invitation to come across the track while the Smileys waited on the opposite side in order to pass. The evidence discloses that on the south side of the highway west of the railroad track there were trees, underbrush, and shrubbery that obstructed the view of the public coming from the west and prevented them from seeing a train approaching from the south. To the west of the railroad track, and south, was a mound or hill which obstructed the view of the train from travelers coming from the west. There is some evidence that the underbrush to the south of the highway extended to the right of way. On the day of the accident, there was also a tent close to the right of way south of the highway which also obstructed the view of the train from one coming from the west. The view, coming from the east, was not obstructed. Where the highway crossed the track there were only four planks, or timbers, one on each side of each rail, and the ground between the two planks in the center of the track was rough. The condition of the crossing, as described by one witness, was as follows: If a party did not slow down and shift gears to low, he would likely break his car or spring. Another described the approaches and ground between the rails as being rough and chuggy. The roadbed from the hill south to the crossing was down grade; the train approached from the south and after it came from behind the hill, where there was a curve in the track, it coasted down this grade to the crossing at a speed of from 35 to 40 miles an hour.

¶6 The Smileys were on the east side of the highway watching the train approach, and testified there was no whistle blown, nor bell rung, and the train was coming down the grade without making any sound or noise whatever. The engineer and fireman and several passengers testified the whistle was blown before reaching the crossing.

¶7 The case was tried to a jury and a verdict returned in favor of plaintiff, upon which judgment was rendered. From said judgment, an appeal has been regularly prosecuted to this court.

¶8 For reversal, the plaintiff in...