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

• Decision Date: 16 March 1926
• Docket Number: 16333.
• Citation: 245 P. 52,117 Okla. 60,1926 OK 257
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. v. MILLER.
• Court: Oklahoma Supreme Court

245 P. 52

117 Okla. 60, 1926 OK 257

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

No. 16333.

Supreme Court of Oklahoma

March 16, 1926

Syllabus by the Court.

Evidence examined, and held: Sufficient to carry the case to the jury on negligence of defendant in failing to construct and maintain its crossing in good condition for the use of the public, under section 5533, C. O. S. 1921, as the proximate cause of the injury.

Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover, if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident, yet the contributory negligence on his part will not exonerate the defendant and disentitle the plaintiff from recovering, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff's negligence after having discovered the peril of the latter.

Held: Evidence sufficient to support judgment on doctrine of "last clear chance."

Commissioners' Opinion, Division No. 2.

Appeal from District Court, Ottawa County; J. J. Smith, Judge.

Action by George Miller against the St. Louis-San Francisco Railway Company for damages. Judgment for plaintiff, and defendant appeals. Affirmed.

E. T Miller, of St. Louis, Mo., Stuart, Sharp & Cruce and Ben Franklin, all of Oklahoma City, for plaintiff in error.

Frank Nesbitt, of Miami, for defendant in error.

WILLIAMS C.

The parties herein will be referred to as plaintiff and defendant as they appeared in the trial court. George Miller commenced this action against the St. Louis-San Francisco Railway Company to recover damages alleged to have resulted from a collision between plaintiff's automobile and one of defendant's passenger trains. Plaintiff alleged that as a result of said collision he had been damaged in the sum of $600 as the reasonable worth of his automobile, same being wholly lost to him; that plaintiff's wife was severely injured, and that on account of said injuries plaintiff lost the aid, association, comfort, and society of his wife for a period of 7 months, to his damage in the sum of $50 per month; that on account of such injuries plaintiff has expended $200 for medicine and medical attention, and prayed judgment against the defendant for $2,999.99, and costs alleging that all of said damages and injuries were the direct and proximate result of the negligence and carelessness in the operation of said train by the employees of the railroad company in charge thereof. The defendant answered by general denial, and pleaded contributory negligence.

The facts, briefly, are: That plaintiff and family were driving from Century to Quapaw, Okl., in a Willis-Knight automobile and as they came into Quapaw plaintiff attempted to cross the track of defendant at a public crossing. There was a shallow hole, or depression, in the crossing from 6 to 12 inches in depth, making it necessary for plaintiff to shift gears of his car. That as he pulled over the main line rail the rear wheel went into the hole, and, in attempting to shift, the gears stuck at neutral and became immovable. That at this time a north-bound passenger train was approaching some half mile distant. That the track is straight and level for a long distance each way, and there was nothing to obstruct the view of approaching trains for a half mile in each direction. That it was a bright, clear day. That the train did not stop until after colliding with plaintiff's car and running on for some few hundred feet.

A demurrer by the defendant to the evidence was overruled, the case submitted to the jury, and a verdict returned in favor of the plaintiff for the sum of $500. From judgment thereon defendant appeals.

Defendant first contends that-

"The evidence is not sufficient to show that the collision occurred and the plaintiff suffered damage on account of defendant's negligence in the maintenance of its crossing." We think the evidence was sufficient to carry the case to the jury as to the liability of the defendant on the question of primary negligence in failing to construct and maintain its crossing in a good condition for the use of the public, under section 5533, C. O. S. 1921, which is:

"It shall be the duty of every railroad company or corporation doing business, or operating a line of railroad, within this state, to construct a crossing across that portion of its track, 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. * * *"

It is self-evident that, had the plaintiff not driven his car upon the track of the defendant, the same would not have become stalled thereon. The evidence reasonably tends to support the finding which inheres in the verdict, that the plaintiff's act in driving his car upon the defendant's track would not, of itself, have resulted in injury to plaintiff's wife and property, but that the negligence of the defendant in leaving the hole in the highway was the proximate cause of such injury.

"The proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a question of fact, in view of the circumstances of fact attending it." St. L. & S. F. Ry. Co. v. Davis, 132 P. 337, 37 Okl. 340.

See, also, Muskogee Electric Traction Co. v. Latty, 187 P. 491, 77 Okl. 156.

The second proposition to be considered is defendant's contention that-

"There is no evidence in the record sufficient to sustain a verdict based upon the doctrine of 'last clear chance"'

The evidence of the plaintiff is to the effect that when he first observed the train it was at least a half mile distant from where the accident occurred; that the plaintiff endeavored...