# Missouri-Kansas-Texas Railroad Co. v. Edwards

> Supreme Court of Oklahoma · April 18, 1961 · 361 P.2d 459

URL: https://www.frixlaw.com/law-library/cases/9854734

## Case

- **Full name:** MISSOURI-KANSAS-TEXAS RAILROAD CO., a Corporation, and Ernest A. Durbin, Plaintiffs in Error, v. John R. EDWARDS, Defendant in Error
- **Court:** Supreme Court of Oklahoma
- **Decided:** April 18, 1961
- **Citations:** 361 P.2d 459; 1961 OK 92; 1961 Okla. LEXIS 533
- **Precedential status:** Published
- **Opinion:** Dissent by Jackson
- **Judges:** Blackbird, Welch, Davison, Johnson, Irwin, Berry, Williams, Halley, Jackson
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JACKSON, Justice
(dissenting).
The majority holds the evidence sufficient to support the conclusion that the negligence of the defendants was the proximate cause of plaintiff’s injuries. The majority further holds the jury was capable of determining whether the crossing was more than ordinarily dangerous and for that reason it was error for the trial court to permit Captain Coulson, a traffic expert, to express an opinion to the jury that the crossing was dangerous and hazardous. I agree with these conclusions. However, I am of the further opinion that this error and other errors hereinafter discussed were so prejudicial to the defendants that we should require a new trial.
The expert witness, Captain Coulson, administrative head of the Traffic Division of the Tulsa Police Department, testified that he had been with that department for ap* proximately sixteen years; that he had attended practically every course of training school that is available for police officers in the traffic safety field; that he was a fellowship graduate of Northwestern University Traffic Institute at Evanston, Illinois, where he was in attendance for a period of nine months; and that he had attended or lectured at numerous other schools, including Oklahoma University, Oklahoma State University, Purdue University, the University of Louisville, and Texas A. & M. College. With this background of instruction and experience established he was then questioned by plaintiff’s attorney:
*469 “Q. Based upon the examination you made on that day, the sight lines which you made, the study of the ground — I call it topography, that may or may not be right — and the road or track, do you have a judgment based upon the study you have made at the Universities and the experience you have had in 15 years as to whether or not that for vehicular traffic going north is a dangerous crossing?
* * * * * *
“Objection overruled.
“A. Yes, in my opinion it is a dangerous, hazardous crossing.”
******
“Q. Is it a type of crossing that some type of wigwag or other signal device is warranted by the nature of the crossing?
“(Objection sustained.)
“Q. Captain Coulson, what other type of warning devices are there used at these dangerous crossings or even some crossings that aren’t dangerous? (Emphasis supplied.)
“A. There are various types. I don’t know whether I can name all of them or not, but I can call to mind a few. There is the flasher type which has a series of light heads and the red light flashes in sequence up and down the series of heads. There is the bell type that has a bell that sounds repeatedly. There is a.type of which a wigwag arm that wags in front of oncoming traffic. There are others.
“Q. Were there any of these at that crossing that day?
“A. No, sir.”
The plaintiff advances several arguments in an effort to show that this testimony by Captain Coulson was neither erroneous or prejudicial. He says “the probative value of Coulson’s testimony was a nullity.” This is upon the ground that “there was no expression of opinion by any witness that this crossing was unusually dangerous or extra hazardous.” (Emphasis by plaintiff.) It is further argued in this connection that since the railroad’s fireman, Mr. Bowman, testified that “all crossings are dangerous”, and that “this court has so held,” citing Chicago, R. I. & P. Ry. Co. v. Taylor, 79 Okl. 142 , 192 P. 349 , that it is obvious that Captain Coulson’s testimony was a nullity and harmless. These arguments are not consistent with the record in this case but before examining the record we should first examine the law. I think we expressed the true rule in St. Louis-San Francisco Ry. Co. v. Prince, 145 Okl. 194 , 291 P. 973, 978 , 71 A.L.R. 357 , in quoting from Central Passenger Ry. Co. v. Kuhn, 86 Ky. 578 , 6 S.W. 441 , as follows:
“It seems, however, that before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad should keep a flagman or gates at a crossing, it must first be shown that such crossing is more than ordinarily hazardous; as, for instance, that it is a thickly populated portion of a town or city, or, that the view of the track is obstructed either by the company itself or by other objects proper in themselves; or that the crossing is a much traveled one, and the noise of approaching trains is rendered indistinct, and the ordinary signals difficult to be heard, by reason of bustle and confusion incident to railway or other business; or by reason of some such like cause; and that a jury would not be warranted in saying that a railroad company should maintain those extra precautions at ordinary crossings in the country.” (Emphasis supplied.)
We then said:
“But if like conditions exist at a crossing in the country, we see no reason why the same rule should not apply thereto.”
The instant case was presented to the jury upon the theory that the crossing was more than ordinarily dangerous and sufficiently dangerous to require more than the statutory cross-bar sign. But while the *470 case was presented on this theory, and the jury was authorized to so find, the plaintiff never did in his pleadings, opening statement, evidence, or argument, refer to it other tiran as a dangerous crossing. When Captain Coulson. was not permitted to testify that this was a type of crossing requiring a wigwag or other type of signal, counsel then asked him what other type of warning devices were used at these dangerous crossings or at some crossings that are not dangerous.
In view of the use of the words “this dangerous crossing” in connection with the responsibility of the defendants to provide other warning devices and signals, and the emphasis placed thereon throughout plaintiff’s petition (which was incorporated in the court’s instructions), the opening statement, the evidence, and argument to the jury, there can be no question but that the jury was apprised of the full significance and import of Captain Coulson’s testimony that this crossing was more than ordinarily dangerous and required additional warning devices.
Plaintiff further contends that the alleged prejudicial error in the admission of the testimony of Captain Coulson could only be material if the jury had returned a verdict solely against the railroad. In argument it is said that the verdict of the jury conclusively establishes liability against the railroad company on issues other than that of unusually dangerous crossing; that the allegations of negligence against the company were (1) failure to. blow a whistle or ring a bell. (2) Excessive speed. (3) Unusually dangerous crossing. Plaintiff then concludes that since the engineer, Durbin, could not be responsible or liable for the unusually dangerous crossing as a matter of law, that it is inescapable that the jury found against Durbin and the Company because of Durbin’s negligence in failing to blow the whistle or ring a bell, and because of excessive speed. This argument requires us to examine the record and determine, if we can, why the jury returned a verdict against Durbin.
Remembering that there were only two defendants in this case, M. K. & T. Ry. Co. and engineer Durbin, I have taken the following quotations from plaintiff’s argument to the jury:
“What right do they have — and his Honor instructed that they have an obligation to maintain that crossing. It is their obligation. (Emphasis supplied.)
“As it happens technically, and in your verdict I insist under the law and in order that there will be no technical difficulty in this cause you may return a verdict against the agent in here, return a verdict against the engineer as well as the company.”
“Mr. Durbin is just a part of the gears like the rest of them. We must have a verdict against him. There is technicalities that could be involved.”
Again, why did the jury return a verdict against Durbin? Mindful that all lawyers would agree that engineer Durbin was not responsible for providing adequate warning devices at the crossing, that is not what the court told the jury. In itemizing the elements of negligence charged against the defendants, the trial court, in stating the issues (or plaintiff’s petition) in its instructions to the jury said:
“(e) The defendant railroad corporation, its agents, servants and employees, and ' in particular Ernest A. Durbin, engineer, all acting with the scope of their employment and agency, failed, neglected and refused to. maintain a proper look-out or to use flagmen or signalmen at all dangerous intersections and crossings which might be utilized by automobiles, and particularly failed to do so at the intersection in question in the corporate limits of the city of Tulsa, Oklahoma.” (Emphasis added.)
In Instruction No. 5 the jury was told:
“This statement of the pleadings simply defines the issues to be tried * * * ”. (Emphasis supplied.)
*471 In Instruction No. 28, the jury was told:
“Should you find by a preponderance of the evidence herein that the defendant, Ernest A. Durbin, was guilty of any of the acts of negligence alleged in the plaintiff’s petition and that said negligence was the proximate cause of the accident and resulting injury to the plaintiff, if any, then your verdict should be for the plaintiff and against the defendant, Ernest A. Durbin, and the defendant, Missouri, Kansas, Texas Railroad Company.” (Emphasis supplied.)
In order not to unduly burden this dissent with quotations I have extracted and quote language which appears in each of the following instructions:
Instructions “Nos. 30, 31 and 32.”
“Should you find by a preponderance of the evidence herein that the defendant, Ernest A. Durbin, was guilty of any of the acts of negligence alleged in plaintiff’s petition, and that the negligence * * * combined and concurred * * * as the proximate cause of the accident and resulting injury to the plaintiff, if any, then your verdict should be for the plaintiff and against the defendant, Ernest A. Dur-bin, * * *.” (Emphasis supplied.)
I have not found in my examination of the record where either of the attorneys, or the court, ever explained to the jury that Durbin was not responsible for the maintenance of proper warning devices at the crossing. The above quoted issues and instructions clearly demonstrate that the jury was told that if Durbin failed to use flagmen or signalmen at the crossing that he was guilty of one of the acts of negligence charged against him, and if the jury so found, they should hold him liable.
Considering the foregoing I am unable to conclude, as does the plaintiff, that the jury did not find engineer Durbin negligent in failing to maintain proper warning devices at the crossing.
Plaintiff invites attention to Cook v. Atlantic Coast Line Railroad, 196 S.C. 230 , 13 S.E.2d 1, 7 , 133 A.L.R. 1144 , as “on all fours” with the instant case, quoting therefrom as follows:
“The Judge instructed the jury that they could find a verdict against the defendants or either of them only upon the negligence charged in the specifications set forth in the complaint. The verdict against the engineer, who of course had nothing to do with the absence .or presence of the watchman at the crossing, certainly indicated that the allowance of this evidence was not prejudicial, even if error.” (Emphasis supplied.)
The difference in the Cook case and the instant case is obvious. In our case the jury was effectively told that under the specifications set forth in plaintiff’s petition (and copied in the court’s instructions) engineer Durbin was charged with negligence in failing to use flagmen or signalmen at the crossing, and that if they found Durbin guilty of this act of negligence, as alleged in plaintiff’s petition, then they should find for the plaintiff and against Durbin.
Finally the question is posed as to whether opinion and expert testimony from an officer holding an official position is prejudicial. The general rule, and the rule that we have consistently followed, is that an expert witness should not be permitted to testify when it is apparent that the jury is capable of evaluating the testimony that they have heard. In our reluctance to reverse trial courts we have in Tuck v. Buller, Okl., 311 P.2d 212 , 66 A.L.R.2d 1043 , and in Miller v. Hickman et al., Okl., 359 P.2d 172 , held that we would not reverse where the trial court permitted an officer to fix the point of impact in automobile cases, in the absence of apparent prejudice. We did not explain in those cases why such testimony was not prejudicial. We have held in strong language that the erroneous admission of such testimony is prejudicial.
In Maben v. Lee, Okl. 1953, 260 P.2d 1064, 1067, 1068 , on the question of prejudice, we said:
*472 “Such testimony (of a highway patrolman) given by a witness occupying an official position, assuredly must have greatly impressed the jury, particularly since the average layman undoubtedly would be inclined to place the stamp of authenticity upon testimony by such an officer. * * * we cannot say that erroneous admission thereof was not prejudicial to defendant. Rather, its admission was material, even vital to defendant and the admission thereof was prejudicial. ”
In Kelso v. Independent Tank Co., Okl.1960, 348 P.2d 855, 858 , we quoted the foregoing statement with approval.
Other courts have expressed themselves in similar language. In Beckman v. Schroeder, 224 Minn. 370 , 28 N.W.2d 629, 637 , it was said:
“No doubt the official position of these experts carried great weight with the jury in locating the place of the collision in the north lane.”
In Padgett v. Buxton-Smith Merc. Co., 10 Cir., 1958, 262 F.2d 39, 42 , it is said:
“ * * * While we are loath to interfere with the broad discretion of the trial courts in matters of this kind, the opinion came from an officer of the law whose badge of authority gave it evidential significance which may not be dismissed as harmless or non prejudicial. As an official opinion of a fact matter within the knowledge or comprehension of the members of a jury it carries a weight which tends to usurp the judicial function. It is indicative, we think, of what appears to be a constantly growing tendency in cases of this kind for an investigation officer to assume the prerogative of assessing liability. This is the'responsibility of the trier of the facts.”
I am convinced that our conclusions expressed in Maben v. Lee, supra, is supported by sound reasoning and should be followed in this case.
As an additional ground for reversal the defendants in their proposition four Submit that Instruction No. 1 (the statement of the issues) was erroneous and prejudicial because it consisted of a reading to the jury of involved and voluminous pleadings containing highly inflammable characterization of the charges. The defendants objected to this instruction but did not present to the trial court a requested instruction in writing.
The plaintiff defends this instruction upon the ground that a requested instruction in writing was not presented, and upon the additional ground that in other portions of the instructions the issues are clearly stated.
In Atchison, Topeka & Santa Fe Ry. Co. v. Hicks, 208 Okl. 689 , 258 P.2d 672, 673 , we held in the sixth paragraph of the syllabus as follows:
“It is the duty of the trial court on its own motion to properly instruct the jury upon decisive issues made by the pleadings and the evidence introduced at the trial and the failure so to do constitutes fundamental error.”
In the second paragraph of the syllabus in Schaff v. Richardson, 120 Okl. 70 , 254 P. 496 , it is held:
“In a trial to a jury where the court fails and refuses, over objection and exception of defendant, to define to the jury the issues raised by the pleadings, but instead copies in full such pleadings, and leaves it to the jury to determine for itself what issues shall be settled by its verdict, such action by the trial court is prejudicially erroneous, especially where the pleadings cover many pages of the typewritten record, raise numerous issues, and present close technical questions about which laymen can have no accurate or professional knowledge. It is the duty of the trial court to define and properly limit the issues submitted to the jury for determination.” (Plaintiff’s amended petition therein covered more than eight pages of the case made.)
In the second paragraph of the syllabus in First Nat. Bank of Mounds v. Cox, 83 *473 Okl. 1 , 200 P. 238 , we held in the second paragraph of the syllabus:
“It is the duty of the trial court to give, upon his own motion, proper instructions substantially covering the issues and the evidence produced at the trial of any cause, and it is fundamental error for it to fail so to do; * * * ”.
In Liberty Nat. Bank of Weatherford, Okl. v. Semkoff, 184 Okl. 18 , 84 P.2d 438, 440 , the plaintiff did not save exceptions to the instructions. Therein we said that we are precluded from reviewing the instructions further than to determine whether they are free from fundamental error. We further said:
“We have therefore examined the instructions given by the court merely for the purpose of determining whether or not they are free from fundamental error, and we find that they fail to instruct the jury upon the decisive issues made by the pleadings and the evidence introduced at the trial, and are in this respect fundamentally erroneous.”
In Petty et al. v. Frank et al., 194 Okl. 382 , 151 P.2d 926 , we held that it is the duty of the trial court on its own motion to submit the tenable theories of the litigants concerning the issues in the action, and a failure to discharge this duty is ground for a new trial even though no instruction is requested by the parties.
In Lambard-Hart Loan Co. v. Smiley, 115 Okl. 202 , 242 P. 212 , at page 214, it is said:
“Pleadings are usually drawn most favorable to the pleader, and the case is rare where the proofs support all allegations fully. Generally they are argumentative and abstruse rather than succinct and didactic. The result is inevitable that where pleadings are permitted to go to the juryroom, arguments which are proper to be considered only by the court are vicariously presented to the jury in secret, and the better pleader is apt to present the stronger and more persuasive argument. To require the losing party under such circumstances to show prejudice to his cause resulting therefrom would be to cast on him an unsupportable burden and to require of him a legal impossibility. The jury should be kept free from even vicarious intrusion after the cause is submitted. * * ⅜
“It follows from what has been said that it is improper practice for a trial court to permit the pleadings in a case to be taken by the jury in its retirement, and where such action by a trial court is objected to, and proper exception reserved, prejudicial error results.”
In Sigma v. Alluri, 1953, 351 Ill.App. 11 , 113 N.E.2d 475, 479 , it is said:
“A more serious objection than mere length is that the instruction tends to emphasize plaintiff’s charges of liability by placing in the court’s mouth substantially the entire charge of the complaint. * * * To hear a judge, the one man in the courtroom whose remarks are most respected, and most dutifully attended, solemnly repeat with all the influence of his favored position, minute after minute and sentence after sentence, detailed charges of negligence carefully drawn by partisan attorneys to present one side of the case in its most appealing aspects, must tend to unduly influence a jury toward the side whose charges are so persistently and so effectively presented through such a power medium.”
In this case the court instructed on the issues by reading to the jury the petition of the plaintiff and the answer of the defendants, covering thirteen pages of the case made for plaintiff’s petition and two pages for the defendant’s answer. A total of forty one instructions were given. They are allegedly involved, voluminous and inflammatory. A few excerpts will be quoted therefrom:
“the tracks run parallel to and at the base of a large hill which completely obstructs the vision of the members of *474 the train crew south on Sheridan Avenue * * * ”.
“ * * * it is impossible for northbound vehicular traffic to observe any train traveling in a southeasterly direction on said track until the train is actually in and upon the thoroughfare known as South Sheridan Avenue.”
“That it was the further duty of the engine crew of said train, and in particular Ernest A. Durbin, engineer, to * * * propel and drive said train at a speed sufficient to avoid a collision with any vehicle on a thoroughfare which crosses their tracks, and to stop the train within the assured clear distance ahead, when such vehicle might be observed.”—
“That the defendant railroad corporation and its engineer, Ernest A. Dur-bin, in operating the train in the manner previously described * * * were under a duty to * * * operate its locomotive and train in such a manner that would permit same to be brought to a complete stop within the assured clear distance ahead, * * *.
“In addition thereto, plaintiff has suffered the most agonizing and excruciating pain possible for a mortal to undergo and still survive.”
“The defendant railroad corporation * * * and in particular Ernest A. Durbin, engineer, * * * failed, neglected and refused * * * to use flagmen or signalmen at all dangerous intersections and crossings which might be utilized by automobiles, and particularly failed to do so at the intersection in question.”
I do not find from an examination of the court’s instructions that the above quoted excerpts were explained or removed from the consideration of the jury. Accordingly I must agree with the defendants that the giving of Instruction No. 1 constituted prejudicial and fundamental error.
For the reasons assigned I must, and do, respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9854734. Public record. Not legal advice.