238 P. 1118 | Okla. | 1925
On the 7th day of October, 1921, Robert E. Bryan, while attempting to drive a wagon across the tracks of the St. *40 Louis-San Francisco Railway Company at the intersection of said tracks and Third street in Hobart, Okla., was struck by a motor train and almost instantly killed. Suit was filed by Ruth Bryan, his widow, on behalf of herself and four minor children, against the railway company and P.P. Palmer, engineer of the train. The parties will be referred to as in the trial court.
The petition alleges, in substance, that the accident was caused by the negligence of the defendants in that they ran the train over the crossing at a dangerous rate of speed of 20 miles per hour; they failed to give any kind or manner of signal of its approach; they failed to use ordinary care to prevent the accident; they operated and were operating the train in excess of the speed prescribed by the ordinances of the city of Hobart; the motor car was defective and worn out and the brakes were defective, and that the defendant Palmer was incompetent and unskilled. Defendants answered, denying these allegations, and alleged that the deceased was guilty of contributory negligence. Plaintiff replied by general denial.
The record discloses that the deceased, Robert E. Bryan, on said date was driving his wagon and team east on Third street within the corporate limits of Hobart, Okla., traveling toward the crossing where Third street intersects the railway's tracks, which run north and south through the city. The wagon contained two bales of cotton, on one of which deceased was sitting. The first track before reaching the main line was a track known as the house track, which was full of cars, except for the crossing, and because of these cars and certain buildings deceased was unable to see an approaching train until he had passed over the house track. From some little time prior to and at the time of the accident, there were two locomotives south of the crossing, one of which had been whistling and switching cars, and there was evidence that the deceased was looking south when struck. The motor car train was composed of two cars, the engine proper and a trailer, and was about 100 feet long in all, and was carrying passengers, mail, and baggage. It was propelled by motors, the power being furnished by a dynamo driven by a gasoline engine, and made very little noise when running. On the date of the accident the train was on time, and whistled at the water tank, about a half mile north of the depot. The evidence was contradictory as to whether the whistle was blown or the bell rung after it passed the tank. Several witnesses testified that neither was done. The testimony showed that the train was traveling at a speed of from ten to twelve miles an hour when it struck the deceased, and Palmer, the engineer, testified that he was going not more than 20 miles an hour when he first saw the deceased approach the track; that at that time he was within 75 feet of the crossing and the deceased was 25 feet from it. There was evidence that the train ran approximately 100 feet past the crossing after striking the deceased. Therefore, from this testimony, it appears that the train ran about 175 feet after the deceased was seen by the engineer before coming to a stop. Witnesses who were on the train at the time testified that there were two jolts, close together, the first occurring approximately at the Third street crossing when the brakes were applied, and the second when the motor car struck deceased's wagon and team. One witness testified that at that time they were traveling about 12 or 15 miles an hour and ran 70 or 80 feet after the brakes went on, which was approximately at Third street. There was evidence that this train traveling 15 miles an hour ought to stop within 25 to 30 feet after the application of the brakes. The motor car struck the wagon and team of the deceased, knocked him from the wagon, broke the leg of one of the horses and dragged the other under the train about 100 feet south of the crossing, where the train stopped. The deceased died shortly after the accident, while on the way to the hospital, without regaining consciousness.
The jury, at the instance of counsel and under instruction of the court, were taken by the bailiff and viewed the premises where the accident occurred and a photograph of the place and of the car which caused the accident were introduced in evidence at the trial. At the conclusion of the trial the jury returned a verdict for the plaintiff in the sum of $12,000. Judgment was rendered thereon, from which the defendants have prosecuted this appeal.
The defendants urge various assignments of error, particularly in giving instructions Nos. 4 and 11; in admitting in evidence ordinance No. 157 of the city of Hobart and in giving instruction No. 8 with reference thereto; in refusing defendants' requested instruction No. 5; and also that the verdict of the jury was excessive and based upon incompetent testimony.
Defendants contend that the court erred in giving instruction No. 11, which, in our *41
judgment, properly submitted the doctrine of the last clear chance. This rule has been recognized by this court as an exception to the general rule that contributory negligence of the person injured will bar a recovery. It declares that the injured person may recover damages resulting from the negligence of the defendant, although he himself be guilty of contributory negligence, if the injury was caused more immediately by want of care on the defendant's part to avoid the injury after discovering the peril of the injured party. A., T. S.F. Ry. Co. v. Baker,
It is the contention of the defendants here that the evidence did not disclose such facts as justified the application of the rules above set out. With this contention, we do not agree. Several witnesses testified that neither the bell was rung nor the whistle blown after the train left the water tank, one-half mile north of the crossing. This evidence was contradicted by the engineer and other witnesses. In M., K. T. Ry. Co. v. Stanton,
The defendants further contend that this instruction is erroneous for the reason that it did not contain a provision as to concurrent and contemporaneous negligence of the parties, it being their contention that if the plaintiff and defendants were concurrently negligent, no recovery could be had, and in order for the plaintiff to recover, some negligent act of the defendants must be shown, which occurring, after the contributory negligence of the injured party had ceased, caused the injury. We do not agree with this contention. The last clear chance doctrine applicable here contemplates a danger which the engineer, having knowledge thereof, may avoid by due care on his part. To hold that if he, having the last clear chance to avoid the injury by the exercise of due care, is excused if the injured party's negligence continues or is concurrent, is to deny the application of the last clear chance doctrine. It, in effect, would be holding that *42
the rule of contributory negligence would apply and be a defense under such circumstances. The failure of the engineer to perform his duty when he has knowledge of the person's peril and has the opportunity to prevent the injury by the exercise of due care, raises liability. In our judgment, the correct rule is that defendants cannot rely upon contributory negligence of the injured person as a protection where the injury was more immediately caused by the want of due care on defendants' part to avoid the injury after discovering the peril of the injured party. M., K. T. Ry. Co. v. Smith,
The court's instruction No. 4 is as follows:
"You are instructed that contributory negligence is an act or omission upon the part of the person injured, amounting to a want of ordinary care, which, occurring or co-operating with the negligent act of the defendant, is the proximate cause of the injury complained of."
Defendants contend that this instruction is erroneous. Contributory negligence is defined as that want of ordinary care, upon the part of the person injured by the negligence of another, which, combined and concurring with the negligence of the defendant, proximately contributes to the injury. Chickasha Cotton Oil Co. v. Brown,
The defendants further contend that the court erred in admitting in evidence ordinance No. 157 of the city of Hobart, and in giving instruction No. 8 with reference thereto. The provisions of this ordinance are sufficiently set out in instruction No. 8, which is as follows:
"There has been admitted in evidence a certain ordinance No. 157 of the city of Hobart, providing that it shall be unlawful for any engineer, conductor, or other person having a railway locomotive or train of cars in charge to permit or suffer the same to be run along any track in said city at a greater rate of speed than six miles per hour. In this connection, you are instructed that if you find from a preponderance of the evidence that at the time and place deceased was injured, said locomotive and train of cars was being operated in said city and running at a greater rate of speed than six miles per hour in violation of said provision of said ordinance, and that said violation of said ordinance was one of the proximate causes of deceased's injuries and death you are then instructed that such violation of said ordinance would of itself be negligence on the part of the defendants."
Evidence was introduced to show that the intersection of Third street and the railway company's track was within the city, and that the motor train exceeded the speed limit provided for in the ordinance. It is the contention of the defendants that by chapter 53 of Session Laws 1919 (sections 3491 to 3495, Comp. St. 1921), the Corporation Commission is given exclusive control of the protection to be required at all highway crossings in the state within the corporate limits of cities and elsewhere, and that all that portion of the ordinance fixing the protection, that is to say, a speed not to exceed six miles an hour within the city limits, was null and void, because being in conflict with these statutes.
Section 4573, Comp. St. 1921 (sec. 598, Rev. Laws 1910), provides:
"The council shall have power * * *to regulate the running of railway engines, cars, * * * within the limits of said city and to prescribe rules relating thereto and to govern the speed thereof. * * *"
It is the contention of the defendants that by chapter 53, Session Laws 1919 (sections 3491 to 3495, Comp. St. 1921), exclusive jurisdiction over these matters is given the Corporation Commission, and that this exclusive jurisdiction would include the regulating of the speed of trains over said highway crossing. The first section of this act gives the commission full jurisdiction over all public highway crossings where same cross the railroad, and section 4 of said act (section 3494, Comp. St. 1921) provides:
"The Corporation Commission shall have exclusive jurisdiction to determine and prescribe the particular location of highway crossings, for steam or electric railways, the protection required, to order the removal of all obstructions as to view of such crossings, to alter or abolish any such crossings, and to require, where practicable, a separation of grade at any such crossing, heretofore or hereafter established."
A similar contention was made in the case of St. L. S.F. Ry. Co. v. Rundell, decided *43
March 3, 1925 (No. 13304)
The further contention made by the defendants is that the trial court erred in refusing to give their requested instruction No. 5, which, in effect, would have told the jury that it was the duty of the deceased to look and listen for approaching trains before attempting to cross the track. In St. L. S.F. Ry. Co. v. Taylor,
The further contention of the defendant is that the verdict was excessive and based on incompetent testimony. The evidence shows that Robert E. Bryan was 26 years of age and in good health when killed; that he had a wife and four small children; that he was industrious and made a good living for his wife and children. The mortality tables show that he had a life of expectancy of 38.11 years. The jury rendered a verdict for the plaintiff for $12,000 damages. The mortality tables were admissible where a proper foundation had been laid (M., O. G. Ry. Co. v. Collins,
The judgment is therefore affirmed.
All the Justices concur.