Sw. Mo. R. Co. v. Duncan

• Decision Date: 19 November 1929
• Docket Number: Case Number: 18568
• Citation: 1929 OK 499,282 P. 327,139 Okla. 287
• Parties: SOUTHWEST MISSOURI R. CO. v. DUNCAN.
• Court: Oklahoma Supreme Court

1929 OK 499

282 P. 327

139 Okla. 287

SOUTHWEST MISSOURI R. CO. v. DUNCAN.

Case Number: 18568

Supreme Court of Oklahoma

Decided: November 19, 1929

Syllabus

¶0 1. Railroads--Action Against Railroad by Passenger in Automobile Injured in Collision at Crossing--Evidence Held not to Establish Contributory Negligence as Matter of Law.

Where, in an action for damages growing out of an electric railway crossing accident which occurred in the state of Kansas, plaintiff's evidence is to the effect that the approaching electric car could not be seen or heard by the exercise of reasonable care until the automobile in which plaintiff was riding as a guest was too near the track to stop, and such testimony is not conclusively shown to be untrue by the physical facts in evidence, plaintiff cannot be held guilty of contributory negligence as a matter of law, under the applicable rules of decision of the state of Kansas.

2. Trial--Sufficiency of Instructions as a Whole.

It is not necessary for each separate instruction to include every fact or element essential to sustain or defeat an action, nor to cover the entire case. Instructions are sufficient, if all parts thereof, taken together and considered as a whole, fairly present the issues and law of the case, and there is no conflict between the different parts thereof.

3. Negligence--When Instruction on Doctrine of Last Clear Chance Required.

Where defendant's evidence in a particular case raises a question of whether or not defendant exercised reasonable precautions to prevent an accident, after discovering the perilous position of the injured party, the trial court should submit to the jury the doctrine of the last clear chance.

4. Trial--Refusal of Requested Instructions When Covered in Charge.

A party will not be heard to complain that a requested instruction was refused when other instructions, covering the same point and more favorable to the party, were given.

Commissioners' Opinion, Division No. 1.

Error from District Court, Ottawa County; Enloe V. Vernor, Assigned Judge.

Action by Junior Duncan, a minor, by Rose Duncan, his next friend, against the Southwest Missouri Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

McReynolds, McReynolds & Flannigan, and A. C. Wallace, for plaintiff in error.

Frank Nesbit, for defendant in error.

JEFFREY, C.

¶1 This is a suit by Junior Duncan, a minor, as plaintiff, brought by Rose Duncan, his mother and next friend, against the Southwest Missouri Railroad Company, as defendant, for personal injuries received when defendant's electric interurban car collided with an automobile in which plaintiff was riding at a grade crossing about one-half mile southeast of Galena in the state of Kansas. Plaintiff alleged that defendant was a Missouri corporation, and operated electric or interurban cars between Joplin, Mo., and Miami, Okla.; that defendant's railway track at the point of injury runs in an easterly and westerly direction; and that the public highway runs in a northerly and southerly direction and crosses defendant's track about one-half mile southeast of Galena. Plaintiff further alleged that he was a minor ten years of age; that on June 29, 1926, he, his mother, and sister were traveling north on the highway toward Galena in an automobile as the guests of one Ike Enyart; that said automobile was owned and was being driven by the said Ike Enyard. That on the west of the public highway and south of defendant's railway track where the two cross, there are trees and undergrowth so as to obstruct the view to the west of one approaching the railway crossing along the highway from the south. Plaintiff alleged that the dangerous condition of said crossing was well known to defendant, its agents and employees, but that on the date above mentioned, while the automobile in which plaintiff was riding attempted to cross said track, one of defendant's electric cars approached from the west without sounding its bell or whistle at a dangerous rate of speed and struck said automobile, resulting in serious personal injuries to plaintiff. Plaintiff further alleged that the said Ike Enyart before crossing said track slowed down and looked to the east and to the west, but on account of his view being obstructed as aforesaid, he was unable to and did not see the approaching electric car. Defendant denied all allegations of negligence on its part, and pleaded contributory negligence, and the applicable rule of decision of the state of Kansas. The trial resulted in a verdict and judgment for plaintiff in the amount sued for, and defendant has appealed.

¶2 It is first contended that the trial court erred in overruling defendant's demurrer to plaintiff's evidence. Under this assignment of error counsel calls attention to the fact that the defendant's right of way was 50 feet wide, and that there was no growth of any kind or description on the right of way. It is then contended that under the rule announced in Holman v. Railway Company, 113 Kan. 710, 215 P. 1111, and Cooper v. C., R. I & P., 117 Kan. 703, 232 P. 1024, to the effect that testimony that a person looked before crossing a railway track and saw no train approaching must be disregarded as untrue when the physical facts demonstrate that had such person looked he must have seen whatever was in the reasonable range of vision to be seen. Under this rule, it is contended that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff's evidence was that Enyart was driving slowly and when he arrived within about 35 feet of defendant's tracks he slacked his speed, and both Enyart and plaintiff's mother, who occupied the front seat, looked and listened for an approaching car, but that they heard no car, and that the timber and undergrowth on their left was so dense and so near the track that they could not see defendant's car until it was right on them, and too late for Enyart to stop his car. Plaintiff's mother further testified that the railway crossing was familiar to them, that she had on other occasions heard defendant's cars whistle for the crossing, but that no whistle was sounded on this occasion until immediately before the collision. The evidence in this case, when summed up, is very similar to the evidence in Holman v. Ry. Co., supra. In that case, the court, after referring to the rule herein contended for, said:

"But here a witness, whom the jury saw fit to believe, testified that the engine and caboose came so rapidly that plaintiff could not see them and warn her husband, the chauffeur, between the time they entered her range of vision and the time of the collision. Hard to believe? Maybe so, but it could be true, so in this case the record does not clearly convict the plaintiff and her witness of perjury, nor the jury of downright insincerity."

¶3 The substance of plaintiff's testimony is that when the automobile in which plaintiff was riding arrived at a point where the electric car could be seen, it was too late to stop before arriving at the tracks, and the electric car was traveling too fast to permit the automobile to clear the tracks. This could be true. The physical facts do not conclusively disprove it.

¶4 In addition to these observations the same precaution required of one attempting to cross a railway crossing on which is operated an ordinary railway train is not required in crossing a street railway track or an interurban track. In both cases ordinary care is required of the traveler, but ordinary care varies with circumstances, and it has been held by the Supreme Court of Kansas and of this state that the amount of care and precaution required of one attempting to cross an electric car track is not so great as that required of one attempting to cross a steam locomotive track. Wiley v. Southwest Interurban Ry. Co., 89 Kan. 84, 130 P. 659; Muskogee Electric Traction Co. v. Tice, 116 Okla. 24, 243 P. 175. Plaintiff did not testify in the case, but his mother testified that she and plaintiff were guests of the said Ike Enyart, and had nothing to do with the operation of the automobile. She further testified that she and Enyart occupied the front seat and plaintiff occupied the rear seat. If her testimony was true, plaintiff could not have seen the approaching electric car in time to warn the driver. The conduct on the part of plaintiff cannot be said to be contributory negligence as a matter of law, but is of a debatable character, and was properly submitted to the jury for its determination.

¶5 Defendant's next assignment of error is the giving of instruction No. 2. That instruction is as follows:

"You are charged that under the law of the state of Kansas it was the duty of Ike Enyart in driving his automobile to use such care and caution in the use of the crossing as would be commensurate with the danger involved, and if the view be obstructed it would, if necessary, be the duty of the said Ike Enyart to stop and walk down to the crossing to ascertain if any street car might be approaching. However, you are further charged that if you believe from the preponderance of the evidence that plaintiff was, at the time of the collision, riding as a guest of the said Ike Enyart, and had no control over the operation of the automobile and the situation was such at the time that due diligence required the said Ike Enyart to stop before attempting to cross said crossing in order to discover whether there was a street car approaching, the plaintiff would not be negligent in failing to observe the approach of the street car or in failing to insist that the automobile be stopped, and she (he) would be entitled to recover in this case, if you do not find her (him) to have been negligent as the same is defined herein, which negligence contributed directly or proximately to injury complained of."

¶6 It is the latter part of the instruction, which has to do with plaintiff's failure to see the street car, or to insist that the automobile be...