MAMIE SIMPSON, Administratrix of G. T. SIMPSON, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant
Division One
April 19, 1934
70 S. W. (2d) 904
The undisputed facts are that at the time plaintiff’s husband met his death he was traveling in an automobile west on Gibson Street, a much used public street and highway in Muskogee, which is crossed at a grade by defendant’s line of railway at nearly right angles, the tract running somewhat east of north. The train in question was going north or northeast and collided with the automobile near the north curb of Gibson Street at about seven-thirty o’clock on the morning of June 1, 1928.
It is conceded that the substantive laws of Oklahoma, where the deceased met his death, relative to the operation of railroad trains in that state are, where relevant, applicable to and govern this action, and both plaintiff and defendant invoke by their pleadings several statutes of that state, as well as court decisions of that state interpreting same, which need not be set forth here in detail. The action is based on defendant’s negligence in the operation of the engine and train which collided with and killed the deceased, and it will suffice to say that the trial court submitted the case to the jury on two grounds of negligence alleged in the petition, to-wit, (1) that the defendant and its employees operating the train failed to sound the whistle or bell on said locomotive engine on approaching the crossing of Gibson Street, as required by the laws of Oklahoma; (2) that such train was being operated and run in the city of Muskogee at a speed and under circumstances that was too great and dangerous to persons in the lawful use of said street. Other acts of negligence were pleaded as giving a cause of action, such as failure to keep in repair and operating a crossing bell located there to warn travelers of the approach of trains, failure to keep a watchman at such crossing for the same purpose, and failure of the trainmen to keep a proper lookout and watch for persons using this crossing, in view of the fact that the street was a U. S. and State highway over which there was almost constant travel; but under the instructions of the court plaintiff was not allowed to recover on such grounds, though much of the evidence relating to same had a bearing on the question of deceased’s contributory negligence. As supporting and making more definite the ground of negligence in failing to ring the bell or sound the whistle on approaching this crossing, the plaintiff pleaded and put in evidence the statutory provisions of Oklahoma providing that “any person in charge as engineer of a locomotive
The defendant, after moving unsuccessfully to strike out the section of the Oklahoma Constitution just quoted and all allegations of the petition relative to same as not being in accordance with the laws of this State and not binding on the courts of this State in the trial of cases like this, as such provision relates to procedure only, set up and invoked the statute law of Oklahoma making it unlawful for anyone to drive any motor vehicle over the track of a railroad “without first coming to a complete stop,” such law, not to apply, however, in any city having ordinances regulating the traveling of motor vehicles in such city. The defendant pleaded contributory negligence of the deceased in violating the law just mentioned in that deceased on approaching the crossing in question “drove said automobile at a high, excessive and dangerous rate of speed; that he did not stop said automobile or cause the same to be stopped before attempting to cross defendant’s track, as required by the law of Oklahoma; that defendant does not know whether the said G. T. Simp-
The defendant also set up at much length the invalidity of the city ordinance of Muskogee limiting the running of trains through the city and over its street crossings to not exceed twelve miles per hour, as being in violation of defendant’s rights as a common and interstate carrier of passengers and freight engaged in interstate commerce, and the carrying of United States mail; also that such ordinance was and is void in that it is unfair and discriminatory as against defendant in not applying to other carriers of freight and passengers, such as motor busses, with which defendant must compete, and that “by reason of the facts herein set forth, said ordinance, in respect to the provisions above mentioned, is unreasonable, oppressive, arbitrary, discriminatory and unlawful and constitutes an interference with and an undue burden upon interstate commerce and is, therefore, void, and if violated by defendant’s train in question, which defendant denies, it constitutes no act of negligence on the part of defendant in this case.” The court ruled against defendant on this contention and defendant does not stress the point here.
At the trial plaintiff made a case for the jury on the two grounds of negligence on which the case was submitted to the jury. There was ample evidence warranting a finding that defendant’s train was being run at twenty-five to thirty miles per hour as it approached and passed over this crossing where the city ordinance limited the speed at not to exceed twelve miles per hour. The jury was also justified in finding defendant guilty of common-law negligence in operating this train at such a high rate of speed over this much used highway, obstructed, as it was, from the view of travelers thereon. The evidence was ample to warrant the finding that defendant’s trainmen did not either ring the engine bell or sound the whistle on approaching this crossing, as required by the law of Oklahoma. The defendant admits that witnesses who were in a position to hear testified that the train neither sounded the bell nor whistled as it approached this crossing till it was right at and entering on the street crossing, when the engineer saw the deceased’s automobile going onto the track and gave a sharp emergency whistle, too late to prevent the accident.
The crucial point in the case is plaintiff’s contributory negligence. The defendant insists that its demurrer to the evidence should have been sustained on the ground that the evidence, even
Such question, however, does not arise in this case unless the evidence was such that the trial court was, under the law of this State, compelled to declare that the deceased was, as a matter of law, guilty of contributory negligence. The trial court submitted to the jury the question of the deceased’s contributory negligence, and if the evidence is such as to make that a jury question, then the action of the trial court must be upheld under the law of this State, as well as of Oklahoma. If the trial court is justified by the facts in submitting deceased’s contributory negligence to the jury, then the court’s views as to his duty under the law of Oklahoma is not material.
What, therefore, are the facts bearing on deceased’s contributory negligence? The deceased was traveling west toward the crossing on the north side of Gibson Street and the train was approaching from the south. It is shown that this street was so built up with houses along its south side that the deceased could not, because of the obstructions, see the approaching train till he passed the last house, a brick store building, next to the right of way and estimated at thirty-five feet from the track. The view to the south was then unobstructed, but it is apparent that the front end of the automobile would be at least five or six feet nearer the track when the driver could see past this building. The companion of the deceased, riding at his side, and who was injured but not killed in the collision, testified that deceased, as well as himself, commenced looking and listening for a possible train some one hundred fifty feet from the crossing but did not and could not see or hear any train, though the bell or whistle, if sounded, could have easily been heard. A crossing bell was located a few feet from the track on the north side of the street and the evidence shows that this was not ringing. The only point as to this is that there was no warning whatever of this train’s approach being sounded, according to plaintiff’s evidence. The de-
With these facts in mind, we will examine the defendant’s contention that it was the imperative duty of the deceased in approaching this crossing, the railroad track itself being a signal of danger, to look down the track to the south as soon as he could see in that direction on passing the obstructing building, and had he done so he would have seen the coming train while he was some thirty feet from the track, giving both space and time in which to stop in safety. The evidence is that the automobile could have been stopped in about ten feet in an emergency. From this it is argued that either the deceased did not look and give heed to what he saw at his first opportunity to do so, or that he was traveling at such speed and with his car in so little control (the brakes were in good condition) as to speak negligence in that respect. As supporting its contention that deceased was negligent as a matter of law under these facts, defendant cites and relies on several Missouri cases.
In Monroe v. Chicago & A. Railroad Co., 297 Mo. 633, 249 S. W. 644, it is held that notwithstanding the failure of the train to give the statutory signals on approaching a public crossing and that the train was running at a speed prohibited by ordinance, yet it was the duty of a traveler on the highway to look for a coming train after passing obstructions to his vision, if he could do so while yet in a place of safety and before attempting to cross the track, and if by so doing he could see the train in time to stop before entering on the track, his failure to do so is negligence as a matter of law. [See, also, Hayden v. Railroad, 124 Mo. 566, 28 S. W. 74, and Kelsay v. Railroad, 129 Mo. 362, 30 S. W. 339.]
In Evans v. Railroad, 289 Mo. 493, 233 S. W. 397, it is held that a distance of fifteen feet between the point of the first clear vision and the west track, under the circumstances of that case, was suf-
In Campbell v. St. Louis & Suburban Ry. Co., 175 Mo. 161, 172, 75 S. W. 86, this court said: “From the facts and circumstances shown by plaintiffs’ evidence the conclusion might reasonably be drawn that the deceased was guilty of such negligence, but unless that is the only conclusion that can reasonably be drawn from those facts and circumstances, the demurrer to the evidence was properly overruled. If the evidence was such that there could reasonably be no two opinions about it, then its effect should have been declared by the court as a matter of law, otherwise, it was a question of fact for the jury. (Cases cited.)” [See, also, Jackson v. Railroad, 171 Mo. App. 430, 451, 156 S. W. 1005, affirmed by this court in 189 S. W. 381.]
If there were no other facts in the case than those just mentioned, it may be that defendant’s contention as to plaintiff’s contributory negligence should be sustained, though, when we consider the narrow margin in which the deceased had to operate after the train became visible, the question would be a close one, since a court is not justified in declaring a person guilty of contributory negligence unless the facts so showing are such that reasonable men could not come to a different conclusion.
There is, however, another important fact entering into this question, to-wit, the atmospheric conditions existing at the time of this accident.
W. H. Martin, who was riding at the side of the deceased, testified that as he and deceased approached the track after passing the obstructing building on the south, there was a storm coming up and it was dark and had commenced to rain. There was a lot of dust. Just commenced to rain, and the wind blowing, and lots of dust, and you couldn’t see nothing much. The dust was coming up the track from both ways and was between the automobile and the coming train.
This witness at first said he heard the whistle and saw the train just after he passed the store building, but later when asked to mark on a photograph put in evidence where the automobile was when he first heard the sharp whistle and saw the train, he marked the
W. J. Smith, a witness for plaintiff, testified that he was sitting in a car facing east and was on the west side of the track when the train passed him; that he did not hear either the bell or whistle till it looked like it was right at Gibson Street and it blew two short whistles just about the time of the crash. “I didn’t hear any bell. . . . At the time this collision occurred there was a storm coming up from the west and it was very dusty and looked like a real hail storm coming up. The dust was awful severe. Q. Did you observe whether or not there were clouds of dust, or dust up around this crossing? A. Yes, sir, the plow west of the Gibson Street crossing, and the dirt had washed down in the street and the storm was coming right up on Gibson Street and it was very dusty. The dust was thick enough it would have been very difficult in driving facing this storm. It commenced raining just about the time they picked up those men. There was just a moment of time after the whistle occurred until I heard the crash.”
J. W. Young testified: “It was stormy weather. There was a bad cloud coming up from the northwest—kind of began misting rain just about the time it happened. The wind was blowing awful hard. There was quite a bit of dust. I didn’t hear the crossing bell at Gibson Street before this collision occurred. It was dark that morn-
F. M. Harris testified: “I did not hear the train whistle when it got up to Gibson Street. I did not hear it blow at all. It came up a terrible cloud—to the best of my knowledge I think it was out of the northwest, either out of the northwest or right out of the west. Us boys run into the shed. The dust began to blow and the wind, you couldn’t hardly see nothing, you know. That is how come us in the shed.”
A. M. Cooley testified: “I saw this collision. I was looking east and was walking that way. I was trying to get over to those cabins out of the rain and the storm that was coming. I saw the automobile driven by Mr. Simpson just before it got to the crossing. It was storming and dusty—awful dusty that morning. There was dust everywhere—blowing everywhere around the crossing and everywhere. It was pretty thick at the time. I didn’t know that there was a train coming until it was right there at me. This automobile wasn’t traveling but about ten or twelve miles an hour. As Mr. Simpson drove up on the crossing, why the wind was blowing. Mr. Simpson came up on the track. I was standing over there and the train blew two short whistles. Mr. Simpson came right up there on the track and he turned north as the train hit him. It was done all in a second. The automobile was on the north side of the center of Gibson Street. He was turning north when he was struck—sideswiped. When I heard these two sharp whistles the train was right on the crossing nearly. I didn’t hear any other whistles. I didn’t hear any bell. If the crossing bell was ringing at that time, I never heard it. It was dark, stormy, big black cloud, dark at that time.”
The man riding with the deceased testified that he did not and could not see the coming engine till he heard the sharp warning signal, presumably given as soon as the engineer saw the automobile near the track, and the engineer testified that the engine was then entering onto the street and that he applied the engine brake about the middle of the street.
Under this evidence the court could not say as a matter of law that plaintiff was guilty of negligence in not seeing the silent oncoming train in time to have stopped before reaching the track. We take it that there was no headlight burning at the time and to what extent the visibility of this train was affected by the wind, dust and rain storm just breaking naturally had some effect on the occupants of this automobile, as it did on a number of the witnesses who were scurrying to shelter, and in considering contributory negligence this court has often taken into account the presence or absence of matters tending to distract or divert the attention of a person approaching
The court submitted the question of the deceased’s contributory negligence as barring plaintiff’s recovery, notwithstanding any negligence of the defendant, on instructions drawn by and favorable enough to the defendant. Such was all that the defendant was entitled to under the facts of this case, and this is true whether we test the question by the law of Oklahoma or of Missouri.
In Gypsy Oil Co. v. Green (Okla.), 198 Pac. 851, the court said (syllabus): “Where, from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions regarding the question of negligence, such question is properly for the jury.” In Littlejohn v. Midland Valley Railroad Co., 47 Okla. 204, 148 Pac. 120, the court said: “Questions of negligence do not become questions of law, to be decided by the court, except where the facts are such that all reasonable men must draw the same conclusions from them, and the case should not be withdrawn from the jury unless the conclusion follows, as a matter of law, that no recovery can be had upon any view which can properly be taken of the facts the evidence tends to establish.” To the same effect is Chicago, R. I. & P. Ry. Co. v. Felder, 56 Okla. 220, 115 Pac. 529, and other cases might be cited.
In this connection it is claimed that the verdict for plaintiff is strongly against the weight of the evidence and that the trial court should have sustained defendant’s motion for new trial and would have done so had not the court taken the erroneous view that the provision of the Constitution of Oklahoma, making the question of contributory negligence a question for the jury in all cases, had also the effect of making the verdict of the jury conclusive on the question of its being against the weight of the evidence. The record, however, does not show that the trial court even held the view that the Oklahoma law compelled a submission in a trial in this State of contributory negligence to the jury where the evidence establishes contributory negligence as a matter of law; and even if the court took that view it by no means follows that he also took the further view that he was thereby prevented from granting a new trial on the ground that the jury’s finding was against the weight of the
The defendant criticises plaintiff’s Instruction No. 3 which told the jury that if they find that at the time the deceased was struck and killed by defendant’s train, the said train was being run at a greater rate of speed than twelve miles per hour within the City of Muskogee, and that the rate of speed at which it was being run “was excessive and dangerous under the circumstances and conditions existing at the time,” resulting in deceased being struck and killed while in the exercise of ordinary care for his safety, then to find for the plaintiff. If we understand defendant’s contention, it is that a violation of the speed ordinance was not pleaded as a basis of recovery and the jury was not required to find that such ordinance was in force at the time or was violated. A certified copy of the ordinance was put in evidence and its validity and being in force was not contested except on the ground that it was unreasonable and void as discriminatory. This was a question of law for the court, and, being admitted in evidence, it was not necessary to submit and have the jury pass on the question of its being valid and in force. The jury had no right to find that the ordinance was not in force, and the instruction properly assumed that it was. While the jury was not in express terms required to find that defendant was violating the ordinance, it was required to find that defendant was running the train at a rate of speed exceeding twelve miles per hour. The running of the train within the City of Muskogee at a greater rate of speed than twelve miles per hour was necessarily a violation of the ordinance and was negligence per se. The only fact which plaintiff was required to prove, and the jury to find, in order to show defendant’s negligence, was that the train was being run more than twelve miles per hour. [Karle v. Railroad, 55 Mo. 476, 483; Jackson v. Railroad, 157 Mo. 621, 643, 58 S. W. 32.] The plaintiff assumed an unnecessary burden in requiring the jury to find, in addition to the finding that the train was exceeding the ordinance rate of speed, that such rate was excessive and dangerous under the particular facts and circumstances. This instruction seems to have been borrowed from the Jackson case (157 Mo. l. c. 631) where the court said (l. c. 645) that it saw no objection to it. Defendant concedes that the speed ordinance was pleaded by plaintiff, but says it was not pleaded as a basis of recovery. The petition alleges that while deceased was approaching and attempting to cross the track at this crossing, he was struck and killed by defendant’s train running “at a high and dangerous rate of speed of from thirty to thirty-five
Instruction No. 4 is criticised as making the defendant an insurer of the safety of persons using the street and crossing. We do not think the jury would so understand it. It tells the jury that the defendant had a right to lay its tracks across the street and run its trains thereon, but that the right to so use the street was not exclusive in defendant, but it was required to so run its trains over the crossing “in such manner as to not injure others who were themselves lawfully using said street and street crossing;” and that the running of trains at a high rate of speed over such crossing without giving a reasonable warning of the approach of same by ringing a bell or sounding a whistle would subject defendant to liability to plaintiff, if the jury so found, unless the deceased was himself guilty of negligence. This instruction, we think, when read as a whole, fairly presents this phase of the case and that is all it purports to do.
The instructions are criticised as not correctly stating the measure of damages. The first instruction for plaintiff covering the whole case and authorizing a finding for plaintiff closes by saying: “Then and in that event your verdict should be for plaintiff in such sum as you may find from the evidence she is justly entitled to, not exceeding, however, the sum of $75,000, the amount prayed for.” A separate instruction on the measure of damages was then given as follows:
“The court instructs the jury that if you find for the plaintiff, in estimating the damages you should take into consideration the age of plaintiff’s deceased, G. T. Simpson, at the time of his death, his power to earn money and the amount of money he contributed to his family, together with his probable expectancy in life and his power to earn money in the future, and allow the plaintiff and her minor children such a sum as you may find and believe from the evidence she is justly entitled to, not exceeding, however, the sum of $75,000, the amount prayed for in the petition.”
The criticism is that the damage is not limited to the pecuniary
Other criticisms of the instructions given are made by the appellant, but, while we have examined the same, we think it would serve no useful purpose to prolong this decision in a discussion thereof.
The case appears to have been fairly tried and no reversible error is found. The judgment, therefore, will be affirmed. Ferguson and Hyde, CC., concur.
PER CURIAM:—The foregoing opinion by STURGIS, C., is adopted as the opinion of the court. All the judges concur, except Hays, J., absent.