Thompson v. Carter
| Decision Date | 11 May 1943 |
| Docket Number | 30351. |
| Citation | 137 P.2d 956,192 Okla. 579,1943 OK 183 |
| Parties | THOMPSON v. CARTER. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 8, 1943.
Syllabus by the Court.
1. Ordinarily, the presence of a train or railway cars on a crossing, whether moving or stationary, is sufficient notice to a driver of a vehicle on the highway of such obstruction and, in the absence of unusual circumstances, the operating railway company is not under any duty to provide any other notice or warning.
2. Evidence examined, and held to be insufficient to show primary negligence on the part of defendant.
Appeal from District Court, Muskogee County; O. H. P. Brewer, Judge.
Action by Edith Carter against Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, a bankrupt debtor, for personal injuries sustained by plaintiff when automobile in which she was riding collided with defendant's freight train. From a judgment for plaintiff, the defendant appeals.
Reversed and remanded with directions.
Thomas B. Pryor and W. L. Curtis, both of Fort Smith, Ark., for plaintiff in error.
Harry G. Davis and Thomas J. Wiley, both of Muskogee, for defendant in error.
This action was instituted in the district court of Muskogee County by Edith Carter, hereinafter referred to as plaintiff against Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, hereinafter referred to as defendant company, wherein plaintiff sought recovery of damages for personal injuries sustained when an automobile in which she was riding collided with a freight train owned and operated by defendant company. The cause was tried to a jury and a verdict was returned in favor of plaintiff. From a judgment on the verdict defendant has appealed.
The principal question presented is whether or not the evidence discloses primary negligence on the part of defendant.
The record shows that about 10:00 o'clock P. M. on January 19, 1940, plaintiff accepted an invitation by a young man named Robert Smith and a young woman named Mary Best to drive with them from Tahlequah, Oklahoma, to Muskogee, Oklahoma. The automobile in which they were riding was a coupe and was driven by Smith. They were traveling west along U.S. Highway No. 62 as they entered the town of Fort Gibson. The railroad track of defendant company intersects said highway within the corporate limits of said town. As the automobile approached the railroad crossing, said crossing was occupied by a freight train; the locomotive and twelve cars of the train had passed over the crossing, and the automobile collided with the thirteenth car of the train. The train was traveling at a speed of about ten or twelve miles an hour. The evidence indicates that the automobile had been traveling at a high rate of speed immediately prior to the time of the collision.
As a result of the collision the driver Smith and Miss Best were killed instantly, and plaintiff received numerous severe injuries and has sustained permanent disability and disfigurement.
It is admitted that defendant maintains the warning sign required by the statute at the crossing involved herein.
Defendant relies upon the rule, recognized by this court, that ordinarily the presence of a train or railroad cars on a crossing, whether moving or stationary, is sufficient notice to a driver of a vehicle on the highway of such obstruction and, in the absence of unusual circumstances, the operating railroad company is not under any duty to provide any other notice or warning. See Lowden v. Bowles, 188 Okl 35, 105 P.2d 1061; Kurn v. Jones, 187 Okl. 94, 101 P.2d 242; Holt v. Thompson, 10 Cir., 115 F.2d 1013; Annotations 99 A.L.R. 1454, 56 A.L.R. 1115, 15 A.L.R. 902. Plaintiff takes the position that unusual circumstances are involved in the instant case in that the railroad crossing is unusually dangerous because of its peculiar construction, its location, and other existing circumstances of which the defendant company had notice, and, in view of the unusual circumstances, the question as to whether or not the crossing was unusually dangerous is a question for the jury, since reasonable men might differ as to whether or not the trainmen in the exercise of reasonable care might have anticipated the accident. In this connection the evidence adduced in behalf of the plaintiff discloses that the automobile in which plaintiff was riding was approaching the railroad crossing from the east; that for a long distance preceding said intersection the highway slopes to the west gradually at about 3.4 feet per 100 feet; that there is a slight curve in the highway near a drugstore approximately 300 feet east of the intersection; that from a point about 60 feet east of the track to and across the right-of-way the pavement of the highway is level; that the town of Fort Gibson maintains a street light about 100 feet east of the tracks; that there are business buildings on each side of the highway west of the intersection; that by reason of the downgrade or decline of the highway the lights of cars approaching the intersection from the east do not disclose whether a train is on the tracks at the crossing until the approaching car is within about 60 feet of the tracks; that it is particularly difficult to discern comparatively low and dark colored cars that the automobile collided with the thirteenth car which was a black coal car; that the lights from the business buildings west of the tracks tend to confuse the driver of a car approaching from the opposite direction; that the visibility of said lights from the business district causes occupants of cars approaching the intersection from the east to think the highway is unobstructed until the level portion of the highway is reached; that all of the foregoing physical conditions have existed for a great number of years that although many collisions have occurred between vehicles...
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