This is аn action to recover for damages to plaintiff’s truck resulting from a collision with defendant’s frеight cars. Defendant appeals from a judgment rendered on verdict for plaintiff.
Defendant says there was no evidence produced to indicate actionable negligence on its part, and that the evidence on the part of plaintiff shows that the accident was the proximate result of the latter’s own negligence. Error is charged to the court’s action in ovеrruling defendant’s demurrer to the evidence and to the denial of its request for an instructed verdict.
Thе evidence on the part of plaintiff was that the accident occurred in the outskirts of thе city of Mangum where the highway crosses the railroad switches of the defendant. The truck was being drivеn by one Cecil Jackson, plaintiff’s agent, and was carrying a reasonably heavy load. Jaсkson approached the tracks aforesaid on a down grade and was going about 25 or 30 miles per hour; a small building standing near the crossing and belonging to a gin company obstructed his view; whеn he had approached to a distance of 100 feet or more from the switch, some frеight cars were pushed across the highway directly in his path. He attempted to avoid crashing into the side of the cars by turning his truck toward an open space between the aforesaid building and the tracks, but was unable to properly make the turn. As a result he crashed into said buildings, thence into one of the defendant’s freight cars. These impacts knocked the building from its foundation and pushеd the freight car off the tracks and tore up one steel rail. The truck was demolished.
And further, Ceсil Jackson knew the railway was there; he had crossed it many times-over a period of yeаrs. He testified that the time .in question he was not thinking of trains as he approached the tracks, аnd had speeded up the truck after crossing another railroad some 500 feet from the defеndant’s tracks. He heard no locomotive bell, no whistle; saw no flagman or other warning of any kind bеfore he saw the freight cars across the highway.
In view of the foregoing evidence, the trial court should have instructed a verdict for defendant.
The defendant had a perfect legal right tо push its freight cars along their tracks and across the highway. In so doing it violated no legal duty toward thе driver of the truck, unless, perhaps, failure to sound warning constituted a breach of duty. Section 11961, O. S. 1931, 66 Okla. Stat. Ami. § 126. Ordinarily, the question whether proper warning was given in such case is for the jury. St. Louis-San Francisco R. Co. v. Robinson,
But the truck driver said that he was not thinking anything about a train; that he was traveling down grade at a speed of 25 or 30 miles per hour toward defendant’s railway tracks, which he knew were there. This testimony not only fails to give value to his statement that he heard no warning, but shows that hе was himself guilty of negligence. The latter statement was divested of -all probative value -by his othеr statement that he was giving no attention to whether a train was near. Thus plaintiff failed entirely to establish primary negligence on the part of defendant in this respect.' In addition to that, the driver’s fаilure to look and listen when approaching the railroad, which he knew was there, constituted negligence on his part and was the proximate cause of the accident. Missouri Pacific Ry. Co. v. Merritt,
“The presence of a railroad track on which a train may at any time pаss is notice of danger to such an extent that it is the duty of a person about to cross the track on a public highway to exercise caution in so doing and to look and listen before crоssing, and it is negligence to omit such ordinary precaution.”
■ The ■ driver’s own testimony brings him within that rule. And the evidenсe will permit of that inference alone. The court should not have submitted the cause to the jury, and therefore erred in not sustaining defendant’s request for instructed verdict.
The judgment is reversed.