Thrasher v. St. Louis & S. F. R. Co.

• Decision Date: 13 September 1921
• Docket Number: Case Number: 9921
• Citation: 86 Okla. 88,1921 OK 308,206 P. 212
• Parties: THRASHER v. ST. LOUIS & S. F. R. CO.
• Court: Oklahoma Supreme Court

1921 OK 308

206 P. 212

86 Okla. 88

THRASHER v. ST. LOUIS & S. F. R. CO.

Case Number: 9921

Supreme Court of Oklahoma

Decided: September 13, 1921

Syllabus

¶0 1. Railroads--Accidents at Crossings--Contributory Negligence. Ordinary prudence requires of any person possessed of their normal faculties of hearing and seeing, before attempting to pass over a known railway crossing to use them in discovering and avoiding danger from a passing train; and the omission to do so, without a reasonable excuse, is negligence, and if such negligence contributed to the injury of such a person, the action of such injured person should fail.

2. Same--Duty to "Look and Listen." The rule that it is negligence per se of one driving an automobile not to "look and listen" for a train when approaching a railway crossing is not, as a general rule, applicable in all of its force to a passenger in a car riding as the invited guest of the driver and who has no control over the driver or his management of the car, but the negligence of such guest must be determined according to all of the facts and circumstances existing at the time of the accident.

3. Same--Duty of Railroad--Reasonable Speed and Signals. Where a railway company has knowledge of a highway crossing its tracks in a densely populated district, city, town, or village, it is charged with notice that travelers on the highway might be there about to cross or in the act of crossing such highway, and it is its duty to run its trains at a reasonable rate of speed, giving reasonable signals of the approach of the same.

4. Same -- Action for Negligent Death -- Contributory Negligence-- Instructions. In an action for damages for the alleged negligent killing of plaintiffs' decedent at a public railway crossing, where the defendant railway company pleaded the contributory negligence of the deceased, and that such contributory negligence consisted of certain acts of the deceased, it was the duty of the trial court to submit the issue of contributory negligence to the jury, as raised by the pleadings and the evidence, and the instructions to the jury ought to have reference to the circumstances of the case and be so given as to secure a fair consideration and judgment of the jury on the points in issue as raised by the pleadings and the evidence.

5. Trial-- Instructions--Covering Issues. Instructions which principally consist of correct abstract propositions of law but have no special reference to the circumstances of the case on trial are objectionable, and where from the consideration of all of the evidence it is probable the jury may have been misled by such instructions, a new trial ought to be granted.

6. Railroads--Action for Negligent Death--Crossing Accident--Concurring Negligence of Driver of Automobile--Guest of Driver. In an action by plaintiffs' decedent, who was riding as a passenger by invitation of the driver in his car at the time of the fatal accident, the evidence shows such guest was seated on the rear seat of the car and was enclosed by reason of the curtains being up on the car, said curtains having small windows of isinglass affording but a meager opportunity for observing an approaching train, that the passenger had no control of the driver or the management of the car, and the evidence further discloses that the defendant railway company may have been negligent in the operation of its train, and that the driver of the car was negligent in attempting to cross the track of the defendant company without looking and listening for an approaching train. In such situation it was the duty of the trial court to instruct the jury that if they found from the evidence that the concurring negligence of the defendant railway company and that of the driver of the car was the proximate cause of the fatal accident, then and in that event the plaintiffs would be entitled to recover unless the jury further found from the testimony that the plaintiffs' decedent was guilty of contributory negligence, as defined in syllabus paragraph 2 hereof.

7. Same--Instruction--Last Clear Chance. Where the evidence shows that the engineer in charge of the defendant company's train observed the automobile in which the deceased was riding approach the crossing where the fatal accident happened, and at a distance of 47 feet from the crossing where the deceased was killed he noticed the car cross the passing track of the defendant company and then speed up towards the crossing where the accident happened, the occupants of the car apparently unconscious of the approaching train, and the engineer having observed this situation and having failed to sound the whistle warning the driver of the car of the approaching train, and the testimony of a locomotive engineer called as a witness on behalf of the defendant company being that in such a situation the reasonable thing to have done would have been to sound the whistle in order to attract the attention of the driver of the car, the evidence further disclosing that the engineer in charge of the train did not make any attempt to stop the train until the automobile was within about 25 feet of where the accident happened-- in such a situation it was the duty of the trial court under proper instructions to submit the doctrine of the last clear chance to the jury.

8. Trial -- Province of Jury -- Instructions --Credibility of Employes of Railroad. A trial court in his instructions to the jury should not suggest to the jury that the testimony of the defendant company's witnesses, who are servants or agents of said defendant company, should be given any less or greater weight because of their relation to the defendant company. There is no legal presumption against the testimony of the servants or agents of a railroad company because they are such servants or agents, and an instruction that the defendant's witnesses must not be given any less weight because of the fact that they are witnesses in behalf of a railway corporation is wholly unnecessary and is an attempt to restrict the province of the jury in weighing the testimony.

Harrison. C. J., dissenting.

F. E. Riddle and Harry Hammerly, for plaintiffs in error.

W. F. Evans and Kleinschmidt & Grant, for defendant in error.

KENNAMER, J.

¶1 H. F. Thrasher and J. H. Thrasher, as plaintiffs, instituted this action in the district court of Grady county against the St. Louis & San Francisco Railway Company, as defendant, to recover damages in the sum of $ 25,300 for the alleged wrongful death of Mary L. Thrasher. Upon the trial of the cause the jury returned a verdict in favor of the defendant; plaintiffs appeal; and in an opinion filed December 7th, 1920, this court affirmed the judgment of the district court and the cause is now before the court upon a petition for rehearing. The record discloses that on or about December 17, 1916, Elijah Kirk, a friend of the Thrasher family, who lived about five miles west of Mountain Park, Oklahoma, went to the home of the deceased, Mary L. Thrasher, in Mountain Park, a small village of about 500 population, in an automobile for the purpose of conveying the decedent, Mary L. Thrasher, and other friends to his home, where he intended to celebrate his birthday by giving his village friends a dinner; that the home of the deceased. Mary L. Thrasher, was on the east side of the defendant's railroad tracks in the town of Mountain Park; that the tracks of the defendant company through Mountain Park ran in the general direction of northeast and southwest; that Elijah Kirk arrived at the home of Mary L. Thrasher, deceased, about 11 o'clock a. m., and that Olin Thrasher, grandson of the deceased, Mary L. Thrasher, seated himself in the automobile in the front seat by the driver; that Mr. and Mrs. Brashears and the deceased, Mary L. Thrasher, occupied the back seat of the automobile, the deceased, Mary L. Thrasher, occupying the north side of the rear seat, as Elijah Kirk drove the car west toward his home. The day was rather cool and considerable wind was blowing from the north; the curtains were up on the automobile, said curtains having small windows of isinglass in them. Mr. Kirk undertook to cross the tracks of the defendant company at a public crossing in Mountain Park about one block from the defendant company's depot. There were three tracks of the defendant company at this particular crossing, consisting of the main track, the passing track on the east side of the main track, being about 47 feet distance apart, and the house track on the west side of the main line track, about 47 feet distance from the main track. It appears that the crossings of these tracks were in a poor state of repair, but the view to the crossing was unobstructed and a train could he seen approaching from the south anywhere from the east side of the crossing for several hundred feet east, a distance of from one- half to three-quarters of a mile; that the engineer in charge of the engine of the special freight train running from Snyder to Bessie, Oklahoma, as the automobile approached the crossing on Broadway about one block south of the depot, saw the same as the train proceeded from the south first when he was about 500 to 600 feet south of the crossing, and noticed the car slow up, almost coming to a stop, as it crossed the first switch track, and noticed the car proceed until the time the same was struck on the main track crossing by his train. The evidence of the engineer was that he noticed that the automobile speeded up after it crossed the first switch track about 47 feet east of the main crossing, where the accident happened. At the time of the collision the evidence discloses that the train was running from 20 to 25 miles per hour. The engineer testified that when right by the side of the signal board for the particular crossing where the accident happened he started to blow the whistle, but did not finish blowing because his attention was brought to the automobile coming across the crossing. The train...