CHICAGO R. I. & P. RY. CO. v. JONES et al.

CHICAGO R. I. & P. RY. CO. v. JONES et al.
1933 OK 571
27 P.2d 593
166 Okla. 291
Case Number: 21430
Decided: 10/31/1933
Supreme Court of Oklahoma

CHICAGO, R. I. & P. RY. CO.
v.
JONES et al.

Syllabus

¶0 1. Railroads--Action for Injuries to Live Stock at Crossing--Failure of Evidence to Show Negligent Operation of Train.
In an action to recover damages for injury to live stock upon a public crossing, negligence cannot be based upon failure of those in charge of a train to sound the whistle or ring the bell at least 80 rods from such crossing where the plaintiff admits and testifies that he was in charge of and driving such live stock over such crossing and heard the whistle sounded and saw the train approaching while it was at a point more than 80 rods from such crossing. C., R. I. & P. Ry. Co. v. Barton, 59 Okla. 109, 159 P. 250.
2. Same.
Where the uncontroverted evidence of the engineer and fireman shows that they did all that could have been done immediately upon discovery of cows upon the track at a public crossing to stop the train before reaching the crossing and thus avoid injury to the cows, there is no question of fact for a jury to determine as to alleged negligence in such particular. M., K. & T. Ry. Co. v. Raines, 59 Okla. 52, 158 P. 936.
3. Trial--Verdict for Defendant not Directed Where Evidence Conflicting on Material Issue.
Where the evidence is in conflict as to material issues in an action for damages, it is not error to refuse a directed verdict for defendant.

Appeal from District Court, Stephens County: E. L. Richardson, Judge.

Action by R. E. Jones and another, copartners, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

W. R. Bleakmore, John Barry, W. L. Farmer, and Robert E. Lee, for plaintiff in error.
C. L. McArthur and G. F. Womack, for defendants in error.

RILEY, C. J.

¶1 This is an action to recover damages for and on account of alleged negligence in killing and injuring certain cows belonging to defendants in error at and upon a public crossing about one mile south of Duncan, Okla.

¶2 Two questions are presented:

¶3 First. Whether negligence may be predicated upon failure to give a statutory warning at a crossing where the pleadings and proof of the plaintiff show that the owner in charge of and driving his cows over the crossing heard the whistle sounded at a crossing about one-half mile from the one on which the injury occurred, and saw the train approaching while it was more than 80 rods from such crossing; and

¶4 Second. Whether there was sufficient evidence to submit the case to the jury upon alleged negligence in failure to use due care after discovery of the cows upon the crossing.

¶5 While the evidence is in conflict as to whether or not the statutory warning, sounding the whistle and/or ringing the bell, for the crossing upon which the cows were killed, was given, the uncontradicted evidence of the plaintiff is that he heard the whistle sounded at a crossing about one-half mile distant and looked and saw the smoke from the engine and knew the train was approaching before it reached a point 80 rods distant from the crossing and while the cows were upon the railroad track at the crossing.

¶6 It is well settled in this state that negligence cannot be based upon failure of those in charge of a train to ring the bell and (or) sound the whistle where plaintiff pleads and proves that while in the position of safety he knew the train was approaching. Schaff v. Boland, 115 Okla. 191, 241 P. 792; C., R. I. & P. Co. v. Barton, 59 Okla. 109, 159 P. 250. The rule there announced appears to be based on M., K. & T. Ry. Co. v. Gilbreath, 49 Okla. 681, 154 P. 539, wherein it is said:

¶7 On the question of alleged negligence under the so-called "last clear chance" doctrine, there were two distinct alleged omissions relied upon: First: Failure to use due care so as to stop the train in time to avoid the injury after discovery of the cows upon the crossing; and second, failure to sound the whistle or ring the bell after discovering the cows upon the crossing in order to assist plaintiff in getting the cows off the track.

¶8 On the first, the uncontradicted evidence is that the fireman and engineer did all in their power after discovery of the cows upon the crossing to stop the train before reaching the crossing, but were unable to do so. Under the rule announced in M., K. & T. Ry. Co. v. Raines, 59 Okla. 52, 158 P. 936, the plaintiff wholly failed to prove a case based upon this particular alleged omission.

¶9 On the other question, failure to sound the bell or whistle after discovery of the cows upon the track, the evidence is in hopeless conflict. It has frequently been held that the statutory warning, sounding the whistle and/or ringing the bell at least 80 rods from a crossing, is not intended to furnish a standard by which, in every case, to determine whether or not a railroad company has failed to discharge its duty in respect to any warning at public crossing, but is intended rather to prescribe the minimum of care which must be observed in all cases. M., K. & T. Ry. Co. v. Stanton, 78 Okla. 167, 189 P. 753; W. F. & N.W. Ry. Co. v. Groves, 81 Okla. 34, 196 P. 677.

¶10 Whether or not such additional warning was given after discovery by the engineer and fireman of the cows upon the crossing; if not, whether or not, under the facts and circumstances, failure to do so was negligence; and if negligence, whether or not such negligence was the proximate cause of the injury, were all questions of fact for the jury.

¶11 It was therefore not error for the trial court to refuse to direct a verdict for defendant.

¶12 But the trial court did not submit these questions of fact to the jury. Instead, the case was submitted upon the question of failure to give the statutory signal at least 80 rods from the crossing and the question of failure to use proper care in keeping a lookout for stock upon the crossing. It was error to do so, and the judgment is reversed and the cause is remanded for a new trial.