94 P.2d 934 | Okla. | 1939
This is an action for the recovery of damages for injuries to plaintiff's person and his automobile, occurring when he drove said auto into the side of a train of empty freight cars of the defendant railroad company at one of the latter's track crossings on Oklahoma State Highway No. 81, a short distance north of the city of El Reno, Okla.
The plaintiff alleged in his petition that the injuries occurred at about 3 o'clock a. m., while he was lawfully driving his car upon said highway and that they were the result of two or more boxcars being suddenly pushed or switched upon said highway crossing directly in the path of his car, without warning or signal. Other respects in which the negligence of the defendant company was alleged to have been the cause of the injuries were that it failed to place any railroad crossing sign or marker at the point where the tracks crossed the highway, and also that it permitted boxcars to remain on other tracks parallel to the track in question so that the plaintiff's view was obstructed to such an extent that he could not observe the approach to the crossing of the freight cars with which he collided, in time to avoid the collision.
In the defendant company's answer, it alleges that the collision was due, not to its fault or negligence, but was the result of the plaintiff's failure to observe the railroad cars which were passing over the highway crossing at the time of his approach and into the side of which he negligently drove his car without regard to their previous presence on said crossing. *561
The undisputed facts disclosed by the evidence are that the highway at the scene of the accident runs north and south and that the plaintiff's car was traveling north; that at the point where the collision occurred there are railroad yards belonging to the defendant on both the east and west sides of said highway and that nine railway tracks extending across the highway connect the east yard with the west yard; that these nine highway crossings are approximately 150 or 200 feet apart, and there are three crossing signs for the nine crossings; that the collision occurred on the ninth crossing numbering them from the south after the plaintiff had passed over eight of said crossings without mishap; that there is no crossing sign between the eighth and ninth crossings; that at the time of the accident, the freight train collided with was moving at the rate of approximately three or four miles per hour; that the top of the tracks which cross the highway is even with the surface of said highway, so that said crossings are practically level; that the highway is straight for a great distance on both sides of the crossings; that no bell or whistle was sounded by the train; and that the plaintiff's auto struck the side of one of the boxcars of the train.
As to the disputed facts, the testimony introduced on behalf of the defendant company showed by the positive statements of seven witnesses that the defendant's freight train was occupying the entire crossing when the plaintiff's auto arrived at said crossing. Of these seven witnesses, the five who were members of the train crew testified that this train consisted of a switch engine pushing across the highway 42 boxcars and a flat car, which were all coupled together. The three switchmen testified that the plaintiff's auto hit the train at approximately its center and all of the defendant's witnesses who were interrogated on the subject testified that the ends of the train extended for quite a distance both east and west of the highway at the time of the accident. The defendant's evidence fails to disclose whether or not there were other railroad cars standing near the highway crossings on the other eight tracks, except one of its witnesses testified that there were none on the fifth, sixth, seventh, and eighth tracks.
The plaintiff testified to the effect that when he came to the crossings, he stopped and let one or more freight trains pass, and that when he proceeded farther there was nothing in front of him, but there were rows of boxcars on either side of the highway; and that when he had driven about 150 feet from where he stopped to let the other train or trains go by, he saw another train approaching the crossing in front of him and applied the brakes in an attempt to stop, and also turned his car in the direction the train was going, but his car hit the train as it came on; that he did not see any railroad crossing signs, or switchmen, and that he heard no warning signals whatsoever.
Upon submission of the case to the jury, a verdict was returned for the plaintiff in the sum prayed for in his petition, and the court rendered judgment accordingly.
When the defendant's motion for a new trial was overruled, this appeal was perfected in due course.
The petition in error contains 14 assignments of error, which are argued under four propositions appearing in the brief of the appellant, who, like the appellee, will continue to be designated as they appeared in the trial court.
The defendant's first proposition is that the accident was not caused by the violation of any legal duty owed to the plaintiff by the defendant. As defense counsel apply it to the present case, this proposition consists of no more than the contention that the defendant railroad company was under no legal obligation to give the plaintiff a warning sign or signal of the presence of the train on the crossing because its presence there, in advance of the plaintiff's arrival and in his unobstructed view, was sufficient warning in itself. As authority for this contention counsel cite leading cases which deny recovery against a railroad company when, regardless of the warning given, the plaintiff was aware or should have been aware of the train's approach to or presence on the crossing. In all of these cases, however, with one exception, the train's arrival at the crossing preceded the plaintiff's arrival there by such a period of time that, with his unobstructed view of the crossing, in the exercise of due care for his own safety, he could have avoided striking the train. The one case cited in which this was not shown to have been the situation was St. Louis, I. M. S. R. Co. v. Gibson,
In Watson v. Taylor,
"* * * In Kaufman v. Boismier,
"If this was a criminal case where the prosecution is bound to prove the charge beyond a reasonable doubt, it would probably be controlled by People v. O'Sullivan,
In Hosman v. Southern Pac. Co. (Cal.App.)
"The appellate court cannot substitute its own judgment for that of jury as to truth of plaintiff's testimony on appeal from judgment on verdict for plaintiff."
With the evidence conflicting as to when the train appeared on the crossing, it was for the jury to decide whether it was the defendant's duty to warn said plaintiff of said train's approach, and in deciding this question the jury is not confined to those duties particularly described by statute. In St. Louis-San Francisco Ry. Co. v. Prince,
"It is new well recognized that the duty may exist outside the statute to provide flagmen, automatic bells, or other adequate *563
warning appliances, if the situation of the crossing reasonably requires it. And whether or not the situation of any particular crossing requires such additional warning, signs, appliances, etc., is a question for a jury, where the evidence is such that reasonable men might reach different conclusions. Grand Trunk Ry. Co. v. Ives,
This enunciation concerning the duty of a railroad in a crossing accident is in accord with the general rule applying to other negligence cases. For instance, in Martin v. McLain,
"* * * Where the only yardstick which law furnishes for measuring the duty of the defendant is the care which a reasonable and prudent person would exercise under the circumstances and there may be a difference of opinion as to what conduct would constitute such care, it is not only the function of the jury to determine the facts as to what the defendant actually did, but it, is also their exclusive prerogative to determine whether or not that conduct constitutes negligence within the legal definition thereof. * * *"
In that case, we quoted the rule as follows:
"What is or is not negligence is ordinarily a question (of fact) for the jury, and not the court. Where the standard of duty is not fixed but variable, and shifts with the circumstances of the case, it is incapable of being determined as a matter of law, and where there is sufficient evidence, must be submitted to the jury to determine what it is and whether it has been complied with."
In Wisdom v. Bernhardt,
"It is only in cases where the facts are such that all reasonable men must draw the same conclusions from them that the question of negligence becomes one of law for the court, and then only when no recovery can be had upon any view which can properly be taken of the facts which the evidence tends to establish."
Likewise, it was within the exclusive province of the jury to decide whether the defendant's neglect of duty was the proximate cause of the collision, or whether it was the result of plaintiff's negligence. In Kansas, O. G. Ry. Co. v. Jones,
"Upon an issue of proximate cause, when the facts are such that reasonable men may differ in their conclusions as to evidentiary facts or any reasonable inference from them, necessary to proof of the issue, the determination of the issue must be left to the jury."
To the same effect are our decisions in Missouri, K. T. Ry. Co. v. Perino,
"The question of whether or not the plaintiff was negligent, like the question of the existence of negligence on the part of the defendant and the question of whether said negligence, if any, caused the collision, was a matter for the determination of the jury." Martin v. McLain, supra.
In Jones v. East Tenn. V. G. R. Co.,
In Terre Haute I. R. Co. v. Voelker,
"It cannot be said as a matter of law that the failure to look and listen before crossing a railroad track is negligence per se. The question of contributory negligence arising from such omission is one of fact for the jury."
"There the court said:
"It is doubtless a rule of law that a person approaching a railway crossing is bound in so doing to exercise such care, caution, and circumspection to foresee danger and avoid injury as ordinary prudence would require, having in view all the known dangers of the situation; but precisely what such requirements would be must manifestly differ with the ever-varying circumstances under which approach may be made. * * * To omit looking and listening where neither can do any good, as where the track is hidden from sight and other sounds drown the noise of the cars, is not contributory negligence, and there are other circumstances in which the rule of looking and listening cannot, in the nature of this sort of thing, be inflexible. Therefore, to go upon the track in disregard of it is not necessarily, and as a question of law, negligence."
As we are unable to say from our review of the evidence in the present case that the defendant neglected no duty which it owed the plaintiff, and that a neglect of its duty *564 was not the proximate cause of his injuries, the verdict of the jury as to these questions must stand.
In its third and fourth propositions, the defendant complains of certain instructions given the jury which its counsel contend were inapplicable to the facts of this case, as well as misleading and erroneous. Some of these instructions informed the jury of the duty of a railroad to erect caution signs at its highway crossings and to give signals of warning when its trains approached such crossings and attempted to apply such duties to the facts of the present case. Another of these instructions directed the rendition of the verdict in the event that the jury believed that the accident occurred in the manner alleged by the plaintiff and another applied "the last clear chance" doctrine to the defendant's liability. The defendant's attack on the instructions is based upon the same assumption of fact as were its first two propositions, viz., that the freight train in question had been occupying the entire railroad crossing so long previous to the arrival of the plaintiff there that he knew or should have known of its presence and by the exercise of reasonable care could have avoided the collision. No complaint is made of the instructions as abstract propositions of law, but the contention is that in informing the jury what their verdict should be in the event that they believed the plaintiff's allegations of the defendant's negligence and his own freedom from negligence that they referred to a fact situation nonexistent in the evidence of the present case and in this way misled and confused the jury. We have already observed that there was competent evidence tending to support the theory of the plaintiff as well as that of the defendant. Thus it was not error for the trial court to give the jury instructions upon both theories. In Campbell v. Thomas-Godfrey Land Loan Co.,
"In the case tried to the jury, it is the duty of the court to submit by appropriate instruction the theory of the plaintiff where there is evidence reasonably tending to support the same, and likewise to submit by appropriate instruction the theory of the defendants where there is evidence reasonably tending to support the same."
While it is true that the giving of instructions which consist of correct abstract propositions of law, but which are inapplicable to the evidence in a case, will warrant the setting aside of the verdict therein, if it is probable that the jury was misled thereby, yet it is equally true that where there is evidence reasonably tending to establish a material issue, instructions upon that issue cannot be said to be inapplicable to the evidence. In the present case, the evidence of the plaintiff was to the effect that the freight train had not yet reached the highway crossing when he approached it and that the railroad failed to give the warning signs and signals that the circumstances demanded. Therefore, the court correctly issued instructions upon such a theory of fact as well as upon the theory advanced by the defendant company. It is a fundamental rule in the review of instructions that they must be considered together, and when so considered, if they fairly submit the issues to the jury, the verdict will not be set aside for the insufficiency or incompleteness of certain ones standing alone. Instructions numbered 9, 16, 18, and 21 properly submitted the theory of the defendant to the jury, and after a consideration of all the instructions as a whole, we fail to perceive wherein the rights of the defendant company were prejudiced thereby.
Finding no cause for reversal in the instructions given and the verdict rendered in the trial of this cause, the judgment appealed from is hereby affirmed.
BAYLESS, C. J., WELCH, V. C. J., and CORN, HURST, and DANNER, JJ., concur. RILEY, OSBORN, and GIBSON, JJ., dissent.