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

• Decision Date: 16 February 1982
• Docket Number: LOUIS-SAN,Nos. 54430,54491,s. 54430
• Citation: 646 P.2d 593,1982 OK 25
• Parties: Wenoka K. WALKER, Appellee, v. ST.FRANCISCO RAILWAY COMPANY, a Missouri corporation, and L. E. Brewer, Appellants. Richard L. WALKER, Appellant, v. ST.FRANCISCO RAILWAY COMPANY, a Missouri corporation, and L. E. Brewer, Appellees.
• Court: Oklahoma Supreme Court

Page 593

646 P.2d 593

1982 OK 25

Wenoka K. WALKER, Appellee, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Missouri

corporation, and L. E. Brewer, Appellants.

Richard L. WALKER, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Missouri

corporation, and L. E. Brewer, Appellees.

Nos. 54430, 54491.

Supreme Court of Oklahoma.

Feb. 16, 1982.

As Corrected Feb. 26 and March 1, 1982.

As Corrected on Denial of Rehearing April 14, 1982.

An appeal from the District Court of Creek County; Charles S. Woodson, District Judge.

Appellee wife brought an action for negligence and damages against corporate railway for personal injuries sustained at grade crossing when her car and appellant's train collided. Appellant husband brought derivative action for damages for loss of society, companionship, and consortium. The jury found wife 25 percent negligent, corporate train 75 percent negligent, and awarded damages; it found for husband but awarded him no damages. Corporate railway and husband appeal.

AFFIRMED.

Franklin, Harmon & Satterfield by Ben Franklin and John Leo Wagner, Oklahoma City, for appellant, St. Louis-San Francisco Ry. Co.

Jack B. Sellers, Sapulpa, for appellee, Wenoka K. Walker.

Joe A. Moore, Memphis, Tenn., for appellant, Richard L. Walker.

SIMMS, Justice:

This consolidated appeal arose from a negligence action brought by Wenoka K. Walker against the St. Louis-San Francisco Railway and L. E. Brewer after her car and a train collided at a grade crossing, resulting in personal injuries. The crossing in question was not equipped with any special warning devices other than a crossbuck sign. Richard Walker, plaintiff's husband, brought a derivative action for loss of society, companionship, and consortium. The railway company and Brewer denied negligence and alleged contributory negligence because of intoxication, failure to observe warnings, and failure to yield the right of way. They also denied that Richard Walker sustained any damage because of the Walker's long history of marital discord.

St. Louis-San Francisco Railway Company and employee L. E. Brewer (hereafter the railway company) appeal from a jury verdict finding that Wenoka Walker suffered damages in the amount of $268,973.11. The jury further found plaintiff 25% negligent and defendant railway 75% negligent, thereby reducing the amount of the verdict to $201,730.44. Richard K. Walker appeals the jury's denial of damages for loss of consortium.

Appellants present several issues for review including one of first impression: the duty of a railway company to erect warning signals, as determined by the relationship between 17 O.S.1971, § 86, and 66 O.S.1971, § 124 and § 130.

I

Appellant railway believes the jury should have been instructed that under 17 O.S.1971, § 86 ¹, a railroad can be held liable for negligence in failing to install warning devices, but only after the Oklahoma Corporation Commission has ordered such devices emplaced. Under 17 O.S.1971, § 86, defendant asserts it has no duty to install warning devices exists until the Corporation Commission (1) designates a crossing as extra-hazardous and (2) orders the railroad to install the appropriate warning devices. Railroad argues in order to make out a prima facie case, plaintiff should have presented proof that the railway company was acting contrary to an order of the Corporation Commission finding that the railroad was under a duty to provide special cautions. Railroad articulates a decidely minority view. Penn v. Burlington Northern, Inc., Mont. 605 P.2d 600 (1980); 24 A.L.R.2d 1169.

We find unpersuasive appellant's reliance on Missouri-Pacific Railroad Co. v. Owen, 306 F.2d 887 (5th Cir. 1962), in arguing this point. The court begins with a general assertion supporting appellant's position:

"The placing of safety devices at crossings, such as gates, lights, flashing signals gongs or a flagman, is generally covered by statute or city ordinance, and the general rule is that, in the absence of such statute or ordinance, the railroad is not under the duty to provide these special precautions."

It goes on, however, to qualify that rule:

"We do not mean to imply that liability can be predicated upon the dangerous crossing doctrine only by ordinance or statute. We hold merely that, under the facts of this case, there was no proof sufficient to warrant the jury in finding that this crossing was an extra-hazardous one; and we think it was reversible error for the court to submit the question to the jury." (E.A.)

Although we have not previously decided this point by a construction of the interrelationship between 17 O.S.1971, § 86, and 66 O.S.1971, §§ 124, 130 ², we find earlier decisions of our Court more in keeping with the majority view that whether ordinary care or reasonable prudence requires a railroad company to erect and maintain warning signs or other warning devices in addition to those required by statute at a crossing which is unusually dangerous is a question of fact for the jury. See: St. Louis-San Francisco v. Rundell, 108 Okl. 132, 235 P. 491 (1925); St. Louis-San Francisco Ry. Co. v. Prince, 145 Okl. 194, 291 P. 973 (1930) ³.

St. Louis-San Francisco Ry. Co. v. Pufahl, 172 Okl. 449, 45 P.2d 729 (1935), while not speaking directly to the question of whether a railroad can escape liability because the Corporation Commission has not designated the crossing as ultrahazardous and ordered certain warning signals, does give a sense of what Oklahoma policy has been in this area:

"A statute which requires that the engine bell be rung or its whistle blown when the train approaches a crossing, but which does not require a flagman or automatic signal there, is not intended to furnish a standard by which to determine whether or not in every case the railroad has discharged its duty in respect to giving warning of the approach of trains, but is intended rather to prescribe the minimum of care which must be observed in all cases."

Recently Indiana has been in the process of shifting from the minority to the majority view on this question. Stevens v. Norfolk and Western Ry. Co., 171 Ind.App. 334, 357 N.E.2d 1 (1976), quotes the following language which we find highly convincing:

"To say that a railroad can be held to be negligent for the dangerous condition of its highway crossing only in the event it violates a statute or order of the Public Service Commission is, in effect, exempting it from the common law rules of negligence that are applicable to all persons, including operators of motor vehicles. It is evident without citation of authorities that although motor vehicles have statutes or regulations which control their operation and a violation of which may be held to be negligence, still there are other acts not covered by statutes or regulations for which an operator of a motor vehicle may be held liable under the common law of negligence. I feel the same principle applies to all persons alike, including railroads." Tyler, etc. v. Chicago & Eastern Ill. Ry., 173 N.E.2d 314 (1961).

In light of the foregoing discussion illustrating the better reasoning of the majority view and Oklahoma's prior case law, we hold that liability may be imposed absent a statutory requirement if the facts of the particular case are such as to give the railroad the duty to warn the traveling public of the extra-hazardous nature of the crossing. The question of the presence of an extra-hazardous crossing should be left to the jury's determination.

II

Appellant argues that the evidence was insufficient to support the verdict because "the overwhelming preponderance" of the evidence showed that Mrs. Walker's actions constituted the sole proximate cause of her injuries. The railway company justifies it's argument by the fact that defendants presented more witnesses than plaintiff. We cannot agree that this fact, without more, necessarily constitutes a preponderance of the evidence. A rudimentary principle in the law of evidence is that the quality or believability of the evidence presented rules over mere quantity. Notwithstanding that principle, it is within the province of the jury to determine the credibility of the witnesses and to decide the effect or weight to be given their testimony. Therefore, we adhere to the rule set forth in the syllabus of Wat Henry Pontiac v. Pitcock, Okl., 301 P.2d 203 (1956):

"In a law action the verdict of the jury is conclusive as to all disputed facts and all conflicting statements, and where there is any competent evidence reasonably tending to support the verdict of the jury, this court will not disturb the verdict and judgment based thereon." (emphasis supplied)

After examination of the record we conclude there is evidence reasonably tending to support the plaintiff's allegations. The record contains evidence, albeit conflicting, that the railway breached its duty to sound a warning upon approach of the crossing and, as a result, plaintiff sustained injury.

66 O.S.1971, § 126 requires a locomotive to sound a warning bell at a distance of at least eight rods from the place where the railroad crosses any other road or street. 47 O.S.1971, § 11-701(a) requires a person driving a vehicle approaching a railroad grade crossing "to stop within fifty feet but not less than fifteen feet from the nearest rail of such railroad" when (in pertinent part):

"(3) A railroad train approaching within approximately one thousand five hundred feet of the highway crossing emits a signal audible from such distance and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard;

"(4) An approaching railroad train is plainly visible and is in hazardous proximity to such crossing."

Conflicting evidence exists in the record as to whether plaintiff had a duty to stop because (1) a warning was sounded or (2) plaintiff could see an approaching train. Defendants contend plaintiff was unaware of the approaching train because of intoxication. The...