Talliaferro v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 26 September 1916 |
| Docket Number | 5662. |
| Parties | TALLIAFERRO v. ATCHISON, T. & S. F. RY. CO. ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The city of Perry maintained drainage ditches along the north and south sides of D street, immediately to the east of the Santa Fé railroad crossing in said city, which ditches were wholly within the street, with a roadway along said street between such ditches. There was a bridge over the ditch on the south side, which was in a dilapidated condition, which was, at the time of the injury complained of, being used as a means of crossing such ditch in going along a private road across the block to a certain cotton gin and two residences. The bridge in question was practically level with the surface of the street. The horse which plaintiff was driving, attached to a buggy, was frightened by the negligent acts of the employés of the defendant railway company in permitting steam to escape unnecessarily from an engine standing on the Santa Fé track just south of the crossing on D street, according to the testimony of the plaintiff, while he was driving along D street between the Frisco and Santa Fé tracks, and ran across the Santa Fé crossing toward the east, one wheel of the buggy striking the corner of the bridge across the south ditch which caused plaintiff to drop a drive rein and become partially overbalanced. The running horse, at this point turned into the roadway, and ran farther in an easterly direction, gradually crossing D street to the north side thereof. Just before running into the ditch on the north side of D street, the horse suddenly turned and started to the south side of D street. Neither the horse nor the buggy went into the ditch on the north side of D street at the point where the horse suddenly turned, and the buggy was not upset but plaintiff fell from the buggy into the ditch and was injured. The ditch at the point where plaintiff fell into it was about two feet deep. The plaintiff was fully aware of the condition of D street, and had driven along the same many times just prior to his injury, and the horse which he was driving on the occasion of his injury was beyond his control, and had been from the time it crossed the Santa Fé track. Held, that the city of Perry is not liable to plaintiff on account of the injuries sustained by him in such fall.
A railway company, in the enjoyment of its right to operate its trains over its road, must exercise ordinary care not to injure a person who is in the act of crossing its tracks at a public crossing, and its liability for injuries, sustained by a person in a runaway which was caused by the horse taking fright from steam escaping from its engine, is based upon lack of ordinary care under the circumstances; and, where the conditions are such that noises from escaping steam would endanger a person at a public crossing, which result could be avoided by temporarily staying or suspending the noise without materially interfering with the due operation of the train, ordinary care and prudence would require that it be done.
The court erred in sustaining the objections to the introduction of evidence offered by plaintiff in rebuttal, and in refusing to permit plaintiff to complete his record by making a tender of the excluded testimony.
Instructions examined, and held to be erroneous.
Additional Syllabus by Editorial Staff.
The term "ordinary care" denotes such degree of care as is commensurate with the dangers to be encountered, and is determined by the jury in fixing the standard of conduct reasonably to be expected from ordinarily prudent persons under similar circumstances.
Commissioners' Opinion, Division No. 5. Error from District Court, Noble County; W. M. Bowles, Judge.
Action by C. T. Talliaferro against the Atchison, Topeka & Santa Fé Railway Company and another. Judgment for defendants, and plaintiff brings error. Affirmed as to defendant City of Perry and reversed as to defendant railway company, with directions to grant a new trial.
In action for injuries in runaway caused by fright of horse at escaping steam, cross-examination of plaintiff as to the disposition of the horse was proper.
P. W. Cress and Henry S. Johnston, both of Perry, for plaintiff in error.
Cottingham & Hayes, of Oklahoma City, and H. E. St. Clair, of Perry, for defendants in error.
This action was commenced in the district court of Noble county by C. T. Talliaferro, as plaintiff, against the Atchison, Topeka & Santa Fé Railway Company and the city of Perry, as defendants, to recover damages for personal injuries sustained by him on account of the alleged negligence of the defendants. The cause of action was stated in two counts. The trial resulted in a verdict for the defendants, and judgment was rendered on the verdict for the defendants. The plaintiff appeals, and alleges many errors, on account of which he seeks a reversal of the judgment. We shall consider the record first, as it relates to the city of Perry, and, second, as it relates to the Atchison, Topeka & Santa Fé Railway Company.
1. According to the evidence of the plaintiff, he was driving along D street in the city of Perry in a buggy on the 27th day of January, 1910, in the afternoon, between the Frisco and Santa Fé railway crossings, going in an easterly direction, to make delivery of some goods to a house in that direction, and just as he got into the basin between the Frisco and Santa Fé tracks he heard the noise of escaping steam from an engine on the Santa Fé track just south of him, and the shrieking noise from such engine frightened the horse he was driving, and the horse plunged forward and ran up the incline to the Santa Fé track where it crossed D street. He had his horse under control by the time he reached the track and then the steam became more violent and the noise became more shrieking, and as he drove down the decline from the track the noise continued. That he saw some person in the engine cab when the steam first frightened his horse, and the person was looking at him and laughing, and when the noise became more shrieking and the steam more violent, just as he was driving down the decline from the track, he saw this same person in the same condition as before in the cab of the engine. He was then trying to control his horse, but she plunged over the tracks and down the decline. The engine was standing still, and steam was coming from the top and bottom of the engine. He was holding on the lines and trying to control her, and when she ran down the decline from the track she was going as fast as she could, and just as he attempted to cross the bridge across the drainage ditch on the south side of the street, his buggy wheel struck the bridge at an angle of about 30 degrees, struck the north abutment more to the east end of the abutment on the north, and as he struck the bridge the horse was going at full speed, and one line was knocked out of his hand, and he was bounced up in the buggy and lost control of the drive rein. The horse then turned back into the roadway in the street and ran in an easterly direction, gradually crossing the street to the north side, and when the horse came near to the drainage ditch on the north side of the street it suddenly turned toward the south side. Neither the horse nor the buggy went into the ditch, and the buggy was not upset, but plaintiff was thrown from the buggy into the ditch on the north side, and broke his leg and bruised himself, and the horse ran to the south side of the street and plunged into the ditch, dragging with her the buggy. There were two drainage ditches, one on the north side and one on the south side of D street just east of the Santa Fé crossing, and between these two ditches there was the roadway, both ditches being within the street. There was a bridge immediately to the east of the crossing, which was used as a means of crossing the south drainage ditch in going along a private road over the block to the cotton gin and two residences, and the planks on the bridge were loose and the bridge was in a bad condition, but the north end of the bridge was level with the ground. He had crossed this bridge and knew about its condition, and knew about the ditches on both sides of the street, and had frequently traveled along this street. The horse was beyond his control after crossing the Santa Fé tracks. The ditch into which he was thrown was about two feet deep. This, in substance, was the testimony of the plaintiff bearing upon the cause of his injury.
It appears from this testimony that the horse which plaintiff was driving became frightened and ran away on account of the negligence of the employés of the defendant railway company and when the horse ran down the decline immediately east of the Santa Fé tracks, it was running away, and was beyond the control of the driver. The unsafe condition of the bridge across the south ditch may be conceded, but such condition of the bridge in no way contributed to the injury which plaintiff received, unless that portion of the bridge which the buggy struck was in some manner responsible for the injury. As pointed out, the testimony showed that the portion of the bridge which the buggy struck was the north end, and it was level with the ground. No complaint is made as to the end of the bridge being improperly constructed or placed, and nothing gave way when the buggy struck it. Nothing except the usual result attended the striking, namely, the buggy bounded, and the plaintiff was bounced up in the buggy. No negligence, chargeable to the city of Perry, operated to bound the buggy or bounce the plaintiff, and the fact that he lost control of his drive rein was a mere incident so far as the city was concerned in its legal...
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