Missouri Pacific R. Co. v. Merritt

Opinion by MAXES, C. We have given this ease a great deal of attention and study. We have read the entire testimony and the briefs of the respective parties and given the cases cited due consideration, and have reached the conclusion that the trial court erred in not sustaining the demurrer to plaintiff’s evidence, and in not sustaining the motion to direct a verdict at the close of all of the testimony. There are certain duties devolving upon the railroad company in cases of this character and a corresponding duty rests upon those who have occasion to cross the tracks of a railroad company. The case of Thrasher et al. v. St. Louis-San Francisco Railway Company, 86 Okla. 88, 206 Pac. 212, is a case similar to the one at bar and quoting from the first paragraph of the syllabus of that case, the court said : “Ordinary prudence requires of any person possessed of their normal faculties of hearing and seeing, before attempting to pass over a known railway crossing to use them in discovering and avoiding danger from a passing train; and the omission to do so, without a reasonable excuse, is negligence, and if such negligence contributed to the injury of such a person, the action of such injured person should fail.’- In the case of Clark v. St. Louis & S. F. R. Co., 24 Okla 764, 108 P. 361, this court held that, where there was no evidence that the engineer in charge of a train which struck plaintiff at a crossing discovered plaintiff’s peril until the accident, the doctrine of last clear chance did not apply, though the engineer may have seen plaintiff approaching the track in a covered wagon; the engineer having a right to presume that a person so approaching the track had not omitted the ordinary precautions, and would stop in time to avoid an injury. In the case of Railroad Co. v. Houston, 95 U. S. 697. at page 702, 24 L. Ed. 543, rhe court said: “But, aside from this fact, the! failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negli-’ gence of. the company’s employes in these particulars 'vías no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was 'guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon th.e defendant.” The following eases all support the rule *80 laid down in this case: Elliott v. Railroad Co., 150 U. S. 245, 14 Sup. Ct. 85, 37 L. Ed. 1070; Northern Pac. R. R. Co. v. Freeman, 174 U. S. 397. 43 L. Ed. 1024: Railway Co. v. Moesly, 57 Fed. 921; M., K. & T. R. R. Co. v. Horton, 28 Okla. 815, 119 Pac. 233; Ft. Smith & Western R. R. Co. v. Jones, 63 Okla. 228, 163 Pac. 1110; Clark v. St. L. & S. F. R. Co., 24 Okla. 764, 108 Pac. 360; Oklahoma City R. Co. v. Barkett, 30 Okla. 28, 118 Pac. 350; C., R. I. & P. Ry. Co. v. Baroni, 32 Okla. 540, 122 Pac. 926. In the case of Missouri, Kansas & Texas Ry. Co. v. Stanton, 78 Okla. 167, 189 Pac. 753, the first paragraph of the syllabus roads as follows: “It cannot be declared as a matter of law that it is the duty of a person approaching a railroad track at a crossing to stop before going- upon the track. It is his duty to look and listen and to exercise such care as is commensurate with his surroundings to avoid the accident. There may be circumstances under which he should stop, but whether or not this is true depends upon the particular facts of the case, and whether he should stop or not is a matter for the jury to determine.” And paragraph threcj of the syllabus of the same case reads: "The statute which requires a railroad company to give certain signals at highway crossings was not Intended to iurnish a standard by which to determine in every case whether or not such company had failed to discharge its duty in respect to giving-sufficient warnings to the traveling public cf the approach of its trains. It was intended rather to prescribe the minimum of care which must be observed in all cases.” In the case of St. L., I. M. & S. Ry. Co. v. Gibson, 48 Okla. 553, 150 Pac. 465, the court quotes with approval the rule laid down in 33 Cyc. 1049, which reads: “Mere knowledge of the presence of a person on or near a crossing, without knowledge of his actual peril, does not make a railroad company responsible for its failure to avoid injuring him, since the railroad company has the right to presume, in the absence of knowledge to the contrary, that a person seen on, or near a crossing is sui juris, and will exercise ordinary care in stopping or in retiring to a place of safety in time to avoid being injured.” (Crane v. Missouri Pacific, 89 Kan. 472, 131 Pac. 1188; St. Louis. I. M. & S. R. Co. v. Tucka, 95 Ark. 199, 129 S. W. 541; and a number of other cases are cited.) The foregoing- eases are sufficient to show the rule in this jurisdiction. There are numerous other cases that could be cited to support the same rule. Persons crossing railroad tracks must stop, look, and listen before driving on the tracks. They must know thar trains are liable to be passing at all times and it is a reckless disregard of theiir duty to drive on the railroad tracks without using the precaution to stop, look and listen. They can not disregard this duty and rely on the engineer failing to sound the whistle or ring the bell. If the fact is that they did fail to sound the whistle or ring tie bell, such fact would not relieve the person seeking to cross the railroad tracks from the necessity of taking ordinary precaution for his safety. Negligence of the company’s employes in these particulars was no excuse for the negligence of Clay Jones. In this case, had he used his senses he would not have failed to hear the train which was coming in. The engineer, after he saw the j-ractor. if he did see it before he reached the crossing; would not have been required to stop the train, but he-had a right to presume .that the tractor would not heedlessly be driven upon the track in full view of the train. The duty and obligation on the part of the engineer to endeavor to check the train arose only after the tractor got on the track, when it was too late and he was powerless to do so. There were several -witnesses testified positively to the fact that not only was (lie whistle sounded for the station stop but was sounded for the crossing, and that the bell was set in motion with an automatic ringer almost one-half mile south of the crossing and continued to ring until after the engine was stopped, while- there Is no witness who stated positively that the bell was not ringing, and the plaintiff himself admitted that he learned of the approach of the train by hearing the sound of the whistle. Kugler v. White et al.. 91 Okla. 130, 216 Pac. 903. If there was a failure of the plaintiff as to the primary negligence then there was no question to submit to the jury. Midland Valley R. R. Co. v. Bailey. 34 Okla. 193, 124 Pac. 9S7; Phoenix Printing Co. v. Durham, 32 Okla. 575. 122 Pac. 708'; Solts v. Southwestern Cotton Oil Co., 28 Okla. 706, 115 Pac. 776. These cases all sustain the rule that it is necessary for the plaintiff to establish primary negligence before there is anything against which to defend. Counsel for defendant in error has filed quite an elaborate brief and we have read same with a good deal of interest, but in our judgment the plaintiff in this case falls so far short in his testimony in establishing primary negligence on the part of the railroad company that it renders the authorities cited by counsel for defendant in error inapplicable to the facts in this case. AVe are so thoroughly convinced that there was a complete failure on the part of the *81 plaintiff to make out a case that we feel compelled to reverse the case and remand it to the trial court, with instructions to set aside the judgment and grant a new trial. By the Court: It is ordered.