243 P. 175 | Okla. | 1925
This action was commenced in the district court of Muskogee county, Okla., by Edgar D. Tice, defendant in error, plaintiff below, against the Muskogee Electric Traction Company, a corporation, plaintiff in error, defendant below, to recover damages in the sum of $21,100, for injuries received by him and to his automobile and to a load of merchandise in a collision at a public crossing of his automobile and the car of plaintiff in error. Parties will be referred to in this opinion as plaintiff and defendant, as they appeared in the lower court.
The plaintiff, in substance, alleged that he was traveling over the public highway between Muskogee, Okla., and Braggs, Okla., in a Ford truck and, at a place known as "Ross Lake Stop" upon the line of the defendant company, that the defendant carelessly, negligently and wantonly ran one of its street cars into his Ford truck, demolishing the same and severely injuring the plaintiff, setting forth the several injuries to his person, the damage to his machine, the amount of his hospital fees and doctor and nurse bills, and setting forth the amount of damages to the load of merchandise, which he was conveying from the city of Muskogee to the town of Braggs.
The defendant answered by way of general denial and pleaded contributory negligence on part of the plaintiff. Trial was had to the court and jury and the jury returned its verdict in favor of the plaintiff and against the defendant in the sum of $1,858.70. Motion for new trial was filed, heard and overruled, and exception reserved by the defendant. Judgment was rendered by the verdict of the jury for the above amount, and the cause comes regularly upon appeal to this court by the defendant for review.
There are several assignments of error, but the attorney for defendant contents himself with presenting the same for consideration by this court under two heads, which are as follows:
"1. The verdict and judgment is contrary to and not supported by the evidence.
"II. The court erred in submitting the question of last clear chance to the jury under instruction No. 5, as follows: 'You are further instructed that if you believe from the evidence that the plaintiff did not observe the approaching street car, but that the motorman on the said street car saw the plaintiff, and when the motorman, otherwise in the exercise of ordinary care, observed that the plaintiff was not going to stop, then it was the duty of the motorman to use every means reasonably within his power to stop the street car and avoid a collision, and if he failed to do this, then your verdict should be for the plaintiff.' "
In passing upon the first proposition it will be necessary to review briefly the evidence in the case. The evidence on part of the plaintiff shows that he was driving his truck at a speed of about 12 miles an hour; that when he approached within 100 or 150 yards of the defendant's track, he looked south and did not see any car approaching, although he had an unobstructed view of a quarter of a mile; that when he drove up to 40 or 50 yards of the track he looked north and did not see any car; that the road which he was traveling was a public highway and the traffic was very heavy on said highway, as some witnesses testified there was as much travel on this highway over this crossing as there was over the streets of Muskogee, other than two main thoroughfares; that the plaintiff and his companion, Standfield, who was with him, heard no bell ring or other signal; that the interurban electric car of the defendant was being operated by a lineman and not by a regular motorman or conductor; that the car of defendant was the same in construction as the other electric street cars used in the city of Muskogee, and equipped with the same appliances; that the lineman, who was operating the car, acting as motorman, saw the plaintiff traveling in his truck more than a quarter of a mile from the crossing; that the accident occurred at a place where the car stops, or slows down, known as the "Ross Lake Stop;" that the car was about ten minutes ahead of its scheduled time at this point; that the plaintiff's truck was struck with such force and violence that it was *26 totally demolished, part of it being on one side of the track and part on the other side after the accident, and Stanfield, one of the occupants, says he was thrown 55 or 60 feet. There was evidence that the car of defendant, going 20 miles an hour, by applying the brakes and turning off the current, could have been stopped in 20 or 25 feet, as testified to by Joe Gillenwater, the motorman in charge of the car, and the lineman, who was acting as motorman, testified that he thought plaintiff was going to stop and he accelerated the speed of his car, and that he had before that slackened the speed of the car about 100 yards from the crossing and sounded the gong or bell; that when he saw he was going to collide with plaintiff's truck, he put on the air and reversed his car about 15 or 20 feet from the point of collision, and after the car struck the truck, it ran about ten or twelve feet beyond the crossing. The evidence is clear as to the injuries to the plaintiff and his truck, his load of merchandise, and his expenses for doctor and hospital bills and nurse hire, and while there are some contradictions, the jury by its verdict settled all disputed points, and it is now for us to say whether, under the evidence in this case, there were sufficient facts to sustain the verdict of the jury.
The only case cited and relied upon by attorney for defendant in his brief on his first assignment of error is the case of Missouri Pac. R. R. Co. v. Merritt,
"The duty of stopping, looking and listening made incumbent upon one about to cross the right of way of a steam railroad is not the rule governing the rights of foot passengers and vehicle drivers in venturing upon, crossing, or using the tracks of a street railroad."
To the same effect are the cases of: Runnels v. United Railroads of San Francisco (Cal.)
These cases further sustain the rule as applied to street railway companies. The case of Illinois Cent. R. Co. v. Hudson (Tenn.) 188 S.W. 589, was a case where the accident occurred outside of the city limits of Memphis, Tenn., on a car having the same equipment as those used and operated in the city limits, and, in this case and in the case of Citizens Rapid Transit Co. v. Seigrist (Tenn.) 33 S.W. 920, where an accident occurred between the city of Nashville and West Nashville on Charlotte Pike, each gives the reasons for the rule applicable to motors cars operated by gas or electricity, and, in the case of Lundien v. Ft. Dodge, D. M. S. Ry. Co. (Iowa) 147 N.W. 308, where an accident occurred on a highway crossing in the country, it was held:
"That the motorman ought to have his car under control as it passes over a crossing. The reason for such rule is equally applicable to the operation of an interurban car which is run to accommodate local travel, stopping at all public crossings where passengers may be waiting, and this reasonable requirement is a material consideration where alleged contributory negligence is relied upon by the defendant."
This court in the case of Clark v. St. L. S. F. Ry. Co.,
On the second proposition, attorney for defendant relies upon the case of M., O. G. Ry. Co. v. Lee,
We are, therefore, of the opinion that the verdict of the jury and the judgment of the lower court upon said verdict are proper, and finding no reversible error in the record, the judgment of the lower court should be and it is hereby affirmed.
By the Court: It is so ordered.