Petition — Kirkland v. Missouri-Kansas-Texas Railroad

VW4A-VIARS 1 Be

—-—- |

In the

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1974

No. A-758

Drxsie KIRKLAND, Administratrix of the Estate of

LEROY KIRKLAND. deceased.

Petitioner,

VERSUS

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY,

a Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

HIRAM KEITH Myers, JR., of

MYERS AND CUMMINS

125 North Second Street

Hollis, Oklahoma 73550

405-688-3329

Attorney for Petitioner

May, 1975

_ OO LL LLL LL LLL LL LL LL LLL LLL LAA LA LL

UTTERBACK TYPESETTING CO 519 W. CALIF OKLAHOMA CiTy. PH. 235-0030

TABLE OF CONTENTS

PAGE

Opinions Below l

Jurisdiction y

Question Presented for Review 3

Constitutional Provisions and Statutes Involved in

This Case 4

Statement of the Case

Reasons for Granting the Writ 9

Argument and Authority 10

Conclusion _ . 45

APPENDICES

Appendix “A”

Order Sustaining Motion for Summary Judgement

and Dismissal

Appendix “B”

Opinion of the Tenth Circuit Court of Appeals af-

firming Summarv Judgment li-V

Appendix “C”

Order of Tenth Circuit Court of Appeals denving

Petition for Rehearing vi

<a —iii—

; AUTHORITIES CONTINUED PAGE

TABLE OF AUTHORITIES Missouri-Kansas-Texas Railroad Co. v. McFerrin,

Site naar Tex.Civ. App. 1956, 291 S.W.2d 931 36

American Manufacturers Mut. Ins. Co. v. American National Screen Service Corp v. Poster Exchange,

Broadcas‘ing-Paramount Theatres, Inc., 11 FR. Inc., 6 F.R.Serv.2d 1039, 305 F.2d 647 (C.A. 5th.

Serv.2d 1220, 388 F.2d 272 (C.A. 2nd, 1967) 44 1962) 44

— T. & S. Rv. Co. vy. Templar, 204 Okla. 460, Oklahoma City-Ada-Atoka Ry. v. Nickels, 343 P.2d

20 Pad 907 24 1094 (Okla. 1959) | 47

Buck v. Missouri Pac. R. Co., Okla.. 252 F.Supp. Oklahoma Natural Gas Co. v. McKee, 121 F.2d 583

704 (D.C. 1966) . 13, 47 (C.A. 10th, 1941) 37

Champlin v. Oklahoma Furniture Mfg. Co., 269 F.2d Peagler v. Atlantic Coast Line Railroad Company,

918, 74 A.I..R.2d 978 (C.A. 10th. 1959) 4] S.C., 107 S.E.2d 15 (1959) 41, 42-43

Chicago Rock Island and Pacific R. R. Co.. a corp , Pratt, Read & Co. v. New York, N.H. & H.R. Co.,

et al. v. Melot, No. 42662, Vol. 42 O.B.J. (1971). 102 Conn. 735, 130 Atl. 102, 25 N.C.A.A. 79 24-25

p. 423 nro ar 25-27 Raley v. Thompson, 225 P.2d 171 (Okla. 1950) _ 18, 18-19

Clark v. Chicago, M.. -. : -& P R. Co. 16 E.R. Rogers v. Peabody Coal Co., 9 F.R.Serv.2d 56. c. 41.

Serv .2d 28, 55 F R.D. 302 (D.C.D.S.D.., 1972) 1] e 1. 342 F.2d 749 (CA. 6th. 1965) 10-11

eor-veshe aprons 16 F.RServ.2d 900, 467 F.2d 290 St. Louis-San Francisco Ry. Co. v. Prince, 145 Okla.

(CA SOG, TSES) | | " 194, 291 Pac. 973, 71 A.L.R. 357 15-16

Dunn v. St. Louis-San Francisco Railway Company, Sisler v. Jackson, Okla.. 460 P.2d 903 (1969) 93

Okla.. 370 F.2d 681 (C.A. 10th, 1967) 39-40 Smith v. Chicago, Rock Island and Pacific Railroad

Gross v. Southern Ry. Co.. 13 F.R.Serv.2d 56. c. 41. Company, Okla., 498 P.2d 402 (1972) 32-33

(. 3. 414 F.2d 292 (C.A. Sth. 1969) 12, 35, 36-37 Smoot v. Chicago, Rock Island & Pacific Railroad

Co., Okla., 378 F.2d 879 (C.A. 10th, 1967) 38, 39, 40

’

Heath v. John Deere Company of Kansas City, 308

i Supp. 235 (D.C.W.D. Okla., 1969; 37-38 United States v. Diebold, Inc.,. 369 U.S. 654, 8 L.Ed.

2d 176, 82 S.Ct. 99:

Kurn v. Jones, Okia., 101 P.2d 242 (1940) 26 d 1%6, 82 S.Ct. 993 (1962) 44

Miller v. Irby, 227 F.2d 942 (C.A. 10th. 1955). Consrerutsonal Paoviesous:

945 20, 20-22, 34, 37 Oklahoma Constitution, Art. 23, $6 (1907) 5.31. 33, 37

Miller v. Price, Okla.. 33 P.2d 674 (1934) 33-34 Oklahoma Constitution, Art. 23, £7 3,5, 16

Missouri. Karisas & Texas Railroad Co. v. Caster. STATUTES:

Okla., 410 P.2d 67 (1965), reh. den. 1965 and 1966 15. 19 a

M'ssouri-Kansas-Texas Railroad Company v. Haves, 28 U.S.C. §1254(1) 3

Okla.. 445 P.2d 249 and 445 P.2d 254 (both 1968) 29-94 28 U.S.C. $1332(a)/1) 2

28 U.S.C. £2106 3

—

AUTHORITIES CONTINUED PAGE

47 O.S. $11-801(a) (1971) 4, 5, 6, 20, 31, 32

66 O.S. $124 (1963) . 12, 13, 31

66 O.S.A. $124 (1963) ...6, 12, 13, 22, 31, 32

76 O.S. $5 (1970) , RR ona o 4

76 O.S.A. $5(a) (1971) a . 5-6, 16-17

Georgia Statutes, Sec. 68-1661 woniaanal .. 36

RULES:

Federal Rules of Civil Procedure, Rule 56(b), 28

U.S.C.A. (1963), p. 413 6,10

MISCELLANEOUS:

Black's Law Dictionary, 4th Ed., “Ordinary” (West

Pub. Co. 1968), p. 1249 . 18

In the

Supreme Court of the United States

OcToBeR TERM. 1974

No. A-758

Drxsie KIRKLAND. Administratrix of the Estate of

Leroy KIRKLAND, deceased.

Petitioner.

VERSUS

Missouri-KansAs-Texas RAILROAD CoMPANY.

a Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Petitioner, Dixsie Kirkland, Administratrix of the

estate of Leroy Kirkland, deceased, hereinafter referred to

by her lower court status of plaintiff, respectfully presents

to the Court:

|

OPINIONS BELOW

This petition is predicated on the following lower court

order and opinion (unreported):

(1) United States District Court for Western District

of Oklahoma, Honorable Stephen S. Chandler. Order of

March 29, 1974, sustaining Missouri-Kansas-Texas Railroad

2)

Company's (hereinafter referred to as MKT. or Defend-

ant) Motion for Summary Judgment: a copy of said Order

is attached as Appendix “A.”

(2) Tenth Circuit Court of Appeals Order of Decem-

ber 16, 1974, affirming the trial court’s order: a copy of the

Tenth Circuit Order is attached as Appendix “B.”

(3) Tenth Circuit Court Order of January 6, 1975, de-

nying plaintiff’s Petition for Rehearing; a copy of the Order

is attached as Appendix “C.”

i

JURISDICTION

Jurisdiction of the Supreme Court of the United States

is invoked under Title 28 U.S.C. $1332(a) (1). The plaintiff

is a citizen and resident of the State of Oklahoma: the de-

fendant is a Delaware corporation and the amount in con-

troversy, exclusive of costs, exceeds the sum of Ten Thou-

sand Dollars ($10,000.00).

(1) Plaintiff asks review of Order Granting Summary

Judgment and Dismissing Case dated March 29, 1974; the

Order Sustaining Summary Judgment dated December 16.

1974; and the Order Denying Rehearing dated January 6,

1975. (All attached as Appendices “A,” “B” and “— )

(2) The Petitioner applied to the United States Su-

preme Court for and was granted on March 18, 1974. an

Order Extending Time to File Petition for Writ of Cer-

tiorari to and including May 6, 1975.

(3) The statutory provision believed to confer on the

United States Supreme Court jurisdiction to review the

orders of the courts below by Writ of Certiorari are:

cule

(a) Title 28 U.S.C. §1254(1):

“Cases in the courts of appeals may be reviewed

by the Supreme Court by the fcllowing methods:

(1) By writ of certiorari granted upon the peti-

tion of any party to any civil or criminal case

before or after rendition of judgment or de-

”,

cree ;

(b) Title 28 U.S.C. $2106:

“The Supreme Court or any other court of appel-

late jurisdiction may affirm, modify, vacate, set aside

or reverse any judgment, decree or order of a court

lawfully brought before it for review. and may remand

the cause and direct the entry of such appropriate

judgment, decree or order, or require such further

proceedings to be had as may be just under the cir-

cumstances.”

iil

THE QUESTIONS PRESENTED FOR REVIEW

1. Whether the plaintiff's Amended Petition. if taken

as true, states a cause of action against the defendant for

the injuries and subsequent death of the plaintiff's decedent.

2. Whether any material issue or issues of fact disposi-

tive of right or duty exist in the cause after examination

of the facts discovered by depositions and interrogatories.

3. Whether the granting of summary judgment under

the pleadings, facts and circumstances in this case deprive

the plaintiff of her right to an action for damages for in-

juries resulting in death as guaranteed under Art. 23, Okla-

homa Constitution, $7, as amended in 1950. and whether

Said summary judgment wrongfully deprives plaintiff of an

~~

action for injury occasioned by the want of ordinary care

of the defendant as provided in Title 76 Oklahoma Statutes

$5 (1970); all in violation of plaintiff’s rights under the

Constitution and Statutes of the State of Oklahoma.

4. Whether the granting of summary judgment under

the pleadings, facts and circumstances in this case consti-

tutes the creation of a special class of defendants who are

accorded preferential treatment in regard to liability for

tortious acts.

5. Title 47 Oklahoma Statutes £11-801(a) (1971) of

the Highway Safety Code, or more commonly called the

“rules of the road,” provides:

“Any person driving a vehicle on a highway shall

drive the same at a careful and prudent speed not

greater than nor less than is reasonable and proper,

having due regard to the traffic, surface and width of

the highway and any other conditions then existing,

and no person shall drive any vehicle upon a highway

at a speed greater than will permit him to bring it to

a stop within the assured clear distance ahead.”

Should this statute be declared an absolute defense to an

allegation of negligence against a railroad company as a

matter of law, where the facts discovered show the vehicle

in question to have been traveling at a speed within the

Statutory limit, and where no fact discovered indicates that

the speed was other than reasonable under prevailing con-

ditions?

6. Whether the question of decedent's contributory

negligence, if any, under 47 O.S. §11-801(a) (1971). supra,

is a matter of law or a question to be determined by the

trier of fact considering all the circumstances of the case.

_—

7. Whether the trial court and the Tenth Circuit Court

of Appeals by their ruling in regard to 47 O.S. 11-801 (a)

(1971) found ipso fecto that said Statute was violated,

thereby depriving the plaintiff of a trial by jury as to the

issue of contributory negligence.

8. Whether the Oklahoma Supreme Court by means

of judicial legislation has granted to > special interest group,

exclusive of all cther groups and citizens. and to the preju-

dice of this plaintiff, a favored status in regard to the laws

of negligence of this state without benefit of constitutional

cr statutory authority. .

Iv

THE CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THIS CASE

1. Oklahoma Constitution, Art. 23 $7 (1950), Okla-

homa Statutes Annotated, page 853:

“The right of action to recover damages for injuries

resulting in death shall never be abrogated, and the

amount shall not be subject to any statutory limita-

tion. .. .” (Workmen’s compensation portion omitted. ;

2. Oklahoma Constitution, Art. 23 s6 (1907). Okla-

homa Statutes Annotated, page 835:

“The defense of contributory negligence or of as-

sumption of risk shail, in all cases whatsoever. be a

question of fact, and shall, at all times, be left to the

jury.”

3. Title 76 Oklahoma Statutes Annotated $5:a) (1971

Supp.) at page 174:

—

“Everyone is responsible. not only for the result of

his wilful acts, but also for an injury occasioned to

another by his want of ordinary care or skill in the

management of his property or person, except so far

as the latter has, wilfully or by want of ordinary care,

brought the injury upon himself, . . .” (Good Samari-

tan provisions omitted. )

4. Title 66 Oklahoma Statutes Annotated $124 (1963),

at page 365:

“Every railroad corporation operating a line of road

Within this state must erect suitable signs of caution

at each crossing of its road with a public highway.”

5. Title 47 Oklahoma Statutes Annotated, §11-801(a)

(1970 Supp.), at page 46:

“Any person driving a vehicle on a highway shall

drive the same at a lawful, prudent speed not greater

than nor less than is reasonable and proper having due

regard to the traffic, surface and width of the highway

and any other conditions then existing, and no person

shall drive any vehicle upon a highway at a speed

greater than will permit him to bring it to a stop within

the assured clear distance ahead.”

6. Federal Rules of Civil Procedure 56(b), 28 United

States Code Annotated (1963). at page 413:

“For Defending Party. A party against whom a

claim, counterclaim or cross-claim is asserted or a

declaratory judgment is sought may, at any time, move

with or without supporting affidavits for a summary

judgment in his favor as to all or any part thereof.”

onlin

Vv

STATEMENT OF THE CASE

The following facts are either uncontested or stipu-

lated to by the defendant, M.K.T:

An action for damages for wrongful death of Leroy

Kirkland was originally filed in the District Court of Jack-

son County, Oklahoma. The case was removed from the

State court to the United States District Court, W~ tern

District of Oklahoma, by the defendant on the b.- ; of

diversity of citizenship. Upon removal the plainti? de-

manded a trial by jury.

The plaintiff's husband, Leroy Kirkland, left their

home in Hollis sometime in the late afternoon of December

23, 1971, to make a business trip to Lawton, Oklahoma.

some 90 miles to the east. Nothing is known of the dec: lent

until 10:20 o'clock p.m., at which time he was driving his

1969 Ford pickup truck in a westerly direction on Bradford

Strect, Jackson County, Oklahoma.

Bradtord Street runs east and west through the City

of Altus; at a point west of the city limits of Altus, Brad-

ford Street is intersected by a railroad track owned and

operated by the defendant, which runs north and south,

The defendant was involved in a switching operation

consisting of 5 cars. North of the Bradford Street crossing

the engine operated by the engineer was pushing 3 box-

cars, a flatcar and a small dead switch engine in a southerly

direction to a spur track. Directly south of the live encine

that was pushing the train were the 3 boxcars. The next

car was the empty flatcar and the last car in the train was

the small switch engine.

—

Bradford Street is 21 feet wide at the crossing. The

flatear which was stuck by the Kirkland pickup is 48 feet

6 inches in length, and at the instant the flatear was com-

pletely across the street the signalman waved his lantern

to the engineer, who brought the train to a dead stop.

The train crew consisted of Arthur B. Peterson, en-

gineer, John D. Biancett, conductor, and Daniel Shermuth

Chance, Jr., brakeman. The engineer was in his cab while

Blancett and Chance completed the switching operation and

gave movement signals by lantern.

When the train stopped with the flatear across Brad-

ford Street, the two crewmen got off the train. Chance

walked to the west of the train to signal the engineer by

Jantern, while Blancett walked around the south end of

the train toward a switching device located east of the track

and approximately 40 feet south of Bradford Street.

After Chance completed his signal he followed Blan-

cett to the switching device to assist in moving the mech-

anism. According to depositions, this was a one-man switch

which, due to defects, required the attention of two crew-

men to operate it effectively.

Approximately 120 feet to 150 feet to the east of where

the coliision occurred on Bradford Street, there are two

other sets of tracks which are elevated and are referred to

as “up and over” tracks. The elevation causes an irregular

or up-and-down configuration of the roadway over which

Leroy Kirkland was traveling. There was no railroad warn-

ing device in place other than a railroad cross-arm sign,

which on the night of the collision was grey in color, un-

painted and unmarked.

—9—

The night was very dark and cloudy, and there was

no illumination of any kind at the crossing. However, 100

vards to the west of the flatcar there was a farm vard light.

The immobile flatear was thin in vertical silhouette,

measuring three and one-half feet from the road to the bed

of the flatear, which was empty. The flatcar has a steel

undercarriage which extends downward from the bed. The

original paint on this flatear was black but had not been

repainted since its construction in 1956. It was dirty and

covered with a grease-like material; it contained no visible

letterings, markings, lights or reflector tapes. The road

upon which it set was black asphalt.

As the two crewmen approached the defective switch

located 40 feet south of Bradford Street. they saw the

Kirkland pickup come “up and over” the tracks to the east.

Both crewmen stated they started toward the street wav-

ing their lanterns. The pickup laid down 32 feet of skid

marks in a straight line before colliding with the flatcar.

Leroy Kirkland languished 10 days and then died as a re-

sult of the injuries received on December 23, 1971.

VI

REASONS FOR GRANTING THE WRIT

With the understanding that a review on writ of cer-

ticrari by the United States Supreme Court is not a matter

of right but of sound judicial discretion, the Petitioner

urges the review of this case for the following reasons:

1. The Tenth Circuit Court of Appeals has decided an

important state question in a way which conflicts with

applicable Oklahoma law.

= } (...

2. The Tenth Circuit Court of Appeals by affirming

the trial court’s Order Sustaining Summary Judgment for

the defendant has sanctioned a departure from the accepted

and usual course of judicial proceedings in regard to cases

of this nature.

ARGUMENT AND AUTHORITY

After the pleading stage of this action was completed;

after at least 3 pre-trial conferences: after depositions

and interrogatories had been taken by both the plaintiff

and defendant; and after the suit had been on file since

March 2, 1973, a period in excess of 12 months, the United

States District Court for the Western District of Okla-

homa, upon motion by the defendant, entered summary

judgment in favor of the defendant and dismissed the ac-

tion. No affidavits or counter affidavits were filed by either

party, each relying entirely upon the pleadings, deposi-

tions and interrogatories.

The entry of a summary judgment under the facts and

circumstances of this case contravenes the intended pur-

pose of Rule 56(b), Federal Rules of Civil Procedure.

Issues of negligence are ordinarily not susceptible of

summary adjudication, but should be resolved by trial in

the ordinary manner. It is only in the exceptional negli-

gence case that Rule 56 should be invoked. And even where

the trial judge reasonably may surmise that the plaintilf

is unlikely to prevail upcn a trial, that is not sufficient basis

for refusing him his day in court with respect to issues

which are not shown to be sham, frivolous, or so unsubstan-

tial that it would obviously be futile to try them. Rogers y.

a.

PeabodyCoal Co., 9 F.R.Serv.2d 56 c. 41, Case 1: 342 F.2d

749 (C.A. 6th, 1965).

Similar interpretations of Rule 56 have been adopted

by the majority of circuit courts. Summary judgment ic

improper where, although the basic evidentiary facts are

undisputed (as in this case) the case stands or falls on the

inferences that may be drawn from the facts. Donnelly vy.

Guion, 16 F.R.Serv.2d 900, 467 F.2d 290 (C.A. 2d. 1972).

Issues of negligence and such related issues as wanton

or contributcry negligence are ordinarily not susceptible

of summary adjudication either for or against a claimant

and should be resolved at trial. Summary judgment should

not be granted on the ground of contributory negligence

except in an extraordinary case where the facts are con-

ceded or demonstrated beyond question and show a right

to summary judgment with such clarity as leaves no room

for controversy. Thus, in an action to recover for injuries

sustained when plaintiff's automobile collided at a railroad

crossing with defendant's train, where defendant relied on

the defense of last clear chance, since a material issue of

fact existed as to whether defendant's train crew could

have slowed the train sufficiently to have allowed plaintiff's

automobile the fraction of a second which it needed to pass

safely, summary judgment for defendant was not proper.

Clark v. Chicago, M., St. P. & P. R. Co.. 16 F. RServ.2d

739, 55 F.R.D. 302 (D.C.D.S.D.. 1972).

Issues of negligence, contributory negligence and prox-

imate cause, the resolution of which requires the deter-

mination of the reasonableness of the acts and conduct of

the parties under all the facts and circumstances of the

= =

case, cannot ordinarily be disposed of by summary judg-

ment. Gross yv. Southern Ry. Co., 13 F.R.Serv.2d. 56 c. 41,

C. 3, 414 F.2d 292 (C.A. 5th, 1969).

In the Gross case, supra, there was a disputed issue of

fact as to whether railroad was guilty of negligence by

failing to have a crossbuck railroad sign at crossing that

was plainly visible to persons approaching the crossing

from the west at the time and place of the train-automobile

collision. The Fifth Circuit held that this issue precluded

granting of summary judgment in favor of defendant rail-

road.

In the case at bar the defendant, M.K.T., does not

contest the allegation that the crossbuck sign at the cross-

ing was grev and unpainted, but merely argues that the

railroad is under no duty to provide a visible warning

under prevailing Oklahoma decisions and contrary to the

Statutory requirement that such sign be in place. The de-

fendant’s rationale is that the absence or invisibility of the

crossbuck sign cannot be the proximate cause of the acci-

dent!

The Gross case, supra, is of special interest in that it

also involved a train occupying a street crossing. The auto

involved struck the 30th car of the defendant’s moving

freight train. Leroy Kirkland struck a motionless flatcar.

If the case at bar is analyzed in relation to the warning

sign in place at the time of the collision, it will be readily

apparent that this case should not have fallen victim to

summary judgment.

A. The law requires that a suitable sign of caution be

in place at each railroad crosisng in this state. 66 O.S. $124

(1963), supra.

EE ___

= =

B. Two uncontested facts in this case create a question

of fact for the jury: (1) The sign was grey. unpainted and

unmarked: and (2) the flatear upon the crossiag was so

obscure that reasonable men could differ as to whether it

constituted a suitable warning to the decedent.

The plaintiff argues that the sign was not “suitable”

as required by law, and the Oklahoma courts have held

that 66 O.S. $124 (1963). Supra, was intended as a safe-

guard to the motoring public. Buck v. Missouri Pac. R. Co.,

Okla., 252 F.Supp. 704 (D.C. 1966).

The defendant, cn the other hand. urges adoption of

the general rule that Ordinarily the prescnce of the train

on the track is sufficient waining. This line of logic must

presuppose that the train on the track would he at least

as adequate a warning device, thai is, be as visible to the

public, as a “suitable” statutory device. So to sustain the

summary judgment and then to affirm it, the trial court

and the Tenth Circuit Court had to indulge in the presump-

tion that the black flatcar upon the roadway was an ade-

quate substitute for the statutcry warning device required.

The Ccurt has said, in essence, that a low-profile,

black, dirty, unmarked flatcar, situated on an unlighted

black asphait cressing is an adequate substitute for the

Suitable sign of caution to the motoring public as required

by law. 66 O.S. £124 (1963), supra.

It may very well be true that under certain factual

circumstances a railroad car across a r adwav would serve

as adequate warning. The point, however. is that whether

it is or not is a disputed issue of fact that should be sub-

mitted to a jury, and such a dispute cannot be resolved by

"S$

aliens

a construction of the statute or by application of a general

rule. The jury could find as a fact that the Sign was not

Suitable as required by law and that the flatcar upon the

crossing was an inadequate warning under the circum-

stances. The disputed issue of fact as to whether the flatcar

was a suitable substitute for the defective Statutory warn-

ing device is the most important issue in this case.

Leroy Kirkland laid down 32 feet of skid marks prior

to impact. This fact, the defendant asserts. proves the de-

cedent saw the flatcar. This fact, the plaintiff asserts, proves

only that he did not see the flattar until it was too late.

Leroy Kirkland, just prior to succumbing to unconscious-

ness, said to Chance, the brakeman:

“I didn’t see you.”

The only logical meaning to this statement is that he

didn’t see the flatcar soon enough. No railroad warning

lights (even the light from the pushing engine was 3 box-

cars north of the road and behind a boxcar), Signals, bells,

notices, buzzers, guards, signalmen or other warning of

any kind was present—-cnly the black immobile obstacle

across the road. It is a travesty and an assault upon the

constitutional and statutory rights of the private citizen

of this state for the Court to hold that a railroad corpora-

tion may, as it sees fit, substitute the Statutory warning

requirement with its own warning, in this case an invisible

flatear, and thereby escape liability.

The “standing train” rule is never invoked if special

or extra-hazardous circumstances exist at the crossing.

Whether or not such circumstances exist is a question of

fact for the jury.

= =

Conditions at a railroad crossing change from one time

to another, and especially from daytime to nighttime. A

special warning or flagman might not be required at one

time, and yet it might be negligence to fail to provide one

at another time. This is an especially important considera-

ticn in this case, considering all of the attending circum-

Stanccs of the collision.

In the Buck case, Supra, it was stated that failure to

comply with the requirements of Title 66 OS. £124 (1963)

may constitute primary negligence. If the defendant had

merely failed in the case at bar to comply with the statute

and had in fact substituted a visual warning “suitable” to

provide protection to the public, then fine. the decedent

would probably have escaped imjury and death; but to first

ignore the law and then to place a deceptive and camou-

flaged obstacle in decedent's path under the prevailing con-

ditions is repugnant to all concepts of fair play, justice,

right and wrong, or whatever term one might wish to

employ.

The Oklahoma Supreme Court. at page 70 in the case

of Missouri, Kansas & Texas Railroad Co. v. Caster, Okla.,

410 P.2d 67 (1965), veh. den. 1965 and 1966, quoted from

St. Louis-San Francisco Ry. Co. v. Prince, 145 Okla. 194.

291 Pac. 973, 71 A.L.R. 357, as follows:

“Where a crossing is unusually dangerous, because

of its peculiar construction and Situation and the

amount of traffic passing thereover it is the duty of

the railway company to exercise such reasonable care

and take such precautions as common prudence would

dictate, taking into consideration the nature of the

crossing: and whether or not a given crossing is un-

usually dangerous is a question for a jury, unless only

$$$ ee

=_ =

one conclusion could be drawn by all reasonable men

from the evidence relative thereto.

“Whether ordinary care or reasonable prudence re-

quires a railroad company to erect and maintain warn-

ing signs or other warning devices in addition to those

required by statute at a crossing over a public highway

in the country which is unusually dangerous is a ques-

tion of fact for a jury.” (Emphasis added. )

Oklahoma case law generally holds that absence of an

adequate warning sign as required by statute does not con-

Stitute negligence since a Standing railroad car upon a cross-

ing is an equally effective warning. This is a judicial pre-

sumption that cannot be applied to this case. Whether a

standing railroad car upon the tracks constitutes an equally

effective warning to an approaching motorist must be de-

termined by the type and condition of the railroad car in

relation to the conditions prevailing at the crossing at the

time of the collision. To presume, as the Court must, that

in each and every case the traveling public is adequately

warned by the presence of any obstruction under all con-

ditions effectively denies this plaintiff and others trial by

jury. The law abhors presumptions—especially if they are

indulged in at the expense of parties litigant.

Such presumptions on the part of the Court constitute

a form of judicial legislation abrogating plaintiff's right of

action to recover damages for injuries resulting in death

guaranteed by the Oklahoma Constitution, Art. 23 $7, supra.

The Oklahoma Legislature places the responsibility

for injury to another upon the tort feasor, Title 76. OS.

Sia) (1971):

“Everyone is responsible, not only for the result of

his wilful acts, but also for an injury occasioned to

==

another by his want of ordinary care or skill in the

management of his property or person, except so far

as the latter has, wilfully or by want of ordinary care,

brought the injury upon himself... .”

If the Court is permitted to indulge in presumptions

for and on behalf of railroad companies, then the Court

has created a special class of citizens who are not subject

to the provisions of the above cited tort Statute. The stat-

ute says ‘everyone’”—which should be construed to mean

railroad corporations as well as evervone else.

In the last paragraph on page 3 of the Tenth Circuit

Court’s Opinion, the general rule is stated:

“The general rule ir, Oklahoma is that the presence

of a train or railway car on a crossing is sufficient

notice to the driver of a vehicle on the highway of

obstruction; in the absence of unusually hazardous

circumstances the operating railway company is under

no duty to provide notice or warning of the danger to

drivers. Raley v. Thompson, 225 P.2d 171 (Oki. 1950 i

There is more to the paragraph, but first consider.

“+ ++ presence of a train or railway car .. . is sufficient

notice. .. .” This is the statement of an absolute. A]! types,

shapes and colors of railway cars are included in that rule.

To illustrate the absurdity of such a holding one cnly needs

contemplate the existence of a plexiglass railroad car upon

a crossing; or a camouflaged car—one which would fit per-

fectly into its surroundings—like a black. dirty flatcar sit-

ting on a black asphalt street with no light in the immediate

Vicinity. May the Court pre-empt the jury and hold as a

matter of law that the traveling motorist is always ade-

quately warned regardless of conditions or circumstances,

vr must each case stand or fall on its own merits?

= =

The case of Raley vy. Thompson, 225 P.2d 171 (Okla.

1950), is cited by the Circuit Court as authority for the

general rule. Close scrutiny of that case is therefore im-

perative.

First, the rule as cited by the Tenth Circuit Court from

Raley, supra, is an inaccurate recital of the law propounded

in Raley. The Court of Appeals omitted one word from the

general rule, “ordinarily.” The entire recital is found at

paragraph (2), page 173 of the opinion.

“(2) Ordinarily the presence of a train or railway

cars On a crossing, whether moving or stationary, is

sufficient notice to a driver of a vehicle on the high-

way of such obstruction, and in the absence of unusual

circumstances the operating railway company is not

under any duty to provide any other notice or warn-

ing.” (Emphasis added—citations omitted. )

The omitted word is of extreme importance. “Ordi-

nary” is defined in Black's Law Dictionary, 4th Ed., West

Pub. Co. (1968). at page 1249:

“ORDINARY, adj. Regular; usual; normal: com-

mon; often recurring; according to established order:

settled; customary; reasonable: not characterized by

peculiar or unusual circumstances: belonging to, exer-

cised by or characteristic of. the normal or average

individual. . . .” (Citations omitted. )

Therefore, what Raley, supra, says is that under usual,

normal, common. Customary, or reasonable circumstances

the presence of a railway car on a crossing, whether mov-

ing or stationary, is sufficient notice to the motoring public

of its presence.

=

In Raley, supra, the plaintiff struck the 25th car of a

moving freight train, which was legally upon the crossing.

The time was approximately 2:00 a.m. The track and cross-

ing were heavily used by the railroad and traveling public;

lights from an automobile approaching from the opposite

direction could be seen by the plaintiff through and under

the boxcars. The cnly warning was a stationary cross Sign

showing there was a railroad crossing ahead. Plaintiff fur-

ther alleged that his injuries were proximately caused by

the defendant's failure to have at said point of intersection

adequate warning signals in view of the extremely haz-

ardous crossing above described.

Since the Raley decision the Oklahom. Supreme Court

has held in Missouri, Kansas & Texas Railroad Co. y. Cas-

ler, Supra, at page 70, that whether ordinary care or rea-

sonable prudence wouid require additionai warnings at the

crossing involved is a question of fact fer the jury; the de-

cision also holds that the question of whether the crossing

is unusually dangerous is also for the jury to resolve.

Therefore, the Raley case is not only misquoted as to

the law, but has been modified by later decisions.

We have been analyzing the rationale used by the

Tenth Circuit in sustaining defendant's summa:v judgment.

Continuing with the remainder of the last paragraph on

page 3 of that decision, we find this statement:

“. .. The rule stems in part from the Oklahoma Su-

preme Court's application to occupied crossing cases

of the State statute requiring drivers of motor vehicles

on the highway to drive at a speed and with a degree

of care that will enable them to stop within the clear

distance ahead.”

=~ =

The above quote is footnoted with a recital of 47 O.S. §$11-

801(a) (1971), which is also quoted herein at pages 4 and 6.

The applicability of the Highway Safety Code, Title 47

O.S., also known as “Rules of the Road,” to actions in neg-

ligence, questions of proximate cause, foreseeability and

contributory negligence are questions which must be re-

solved by the trier of the facts.

In an opinion written by the Honorable Alfred P.

Murrah, the Tenth Circuit said in Miller v. Irby, 227 F.2d

942 (C.A. 10th, 1955), at page 945:

“And, whether a violation of a statute or traffic reg-

ulation is the proximate cause of a collision is usually

for the jury. Blashfield, Vol. 10A, $6601. p. 318.”

The Miller case, supra, involved an alleged violation

of the Highway Safety Code, Title 47 OS. Supp. §121.6(d),

which requires a motorist to stop his vehicle at the entrance

of a through highway. The plaintiff stopped, but he did so

175 feet prior to the entrance, and the defendant urged in

a trial before the court below, jury being waived, that the

plaintiff's conduct constituted contributory negligence per

se, therefore requiring a reversal of the trial court’s judg-

ment in favor of the plaintiff.

The applicable rule of the road in the Miller case was

given entirely different treatment by the Tenth Circuit

Court of Appeals at page 944 of the opinion:

“(2, 3) Certainly no one can validly contend that

merely stopping at the stop sign 175 feet from the

entrance to the intersection constituted compliance

with the letter or spirit of the statute requiring the

driver of a motor vehicle to stop at the ‘entrance’ to

=

the intersection, any more than it can be said that

stopping at the entrance to the intersection gave the

motorist a license to proceed into the intersection with

impunity. The purpose of the statutes and the rules

of the road is to impose a standard of care commen-

surate with the hazard involved, and the requirement

that an unfavored motorist shall stop at the entrance

of the intersection is but a recognition of the necessity

for orderly traffic based upon rational and common

sense considerations.” (Emphasis added. )

The rule of the road in the Miller case, supra, was ap-

plied in the manner intended—a mere recognition of the

necessity for orderly traffic based upon rational and com-

mon sense considerations. The opinion went on to say that

the Oklahoma courts had previously heid that it was not

intended that motor vehicles should stop at the exact spot

or place where the sign was erected, but it was intended

as a warning to stop at the intersection. As to this Oklja-

homa censtruction, the Tenth Circuit said at page 944:

“But we do not understand the Oklahoma Court

to mean that the failure to stop at the intersection is

negligence as a matter of law.”

And at page 945:

“Still other courts have held that failure to stop at

stop signs erected under statutory authorization does

not create an immutable standard of conduct for mo-

torists, the violation of which courts must declare to

be negligence, regardless of all other facts and cir-

cumstances.”

Even more compelling language is also found at page 945:

“But even though the failure to stop at the entrance

of the intersection may he said to be contributory neg-

—29—

ligence per se, it is not actionable unless it is also shown

that such contributory negligence was the proximate

cause Of the harm.” (Emphasis added. )

The Miller application of the rules of the road as com-

pared to the application made in the case at bar gives rise

to the inference of preferential treatment of certain classes

of defendants, i.e., railroads. It is not negligence as a mat-

ter of law to fail to stop at a stop sign under the applicable

State statute, but it is negligence as a matter of law to be

unable to stop short of running imto the side of a black

flatear at night, even though there is no finding anywhere

in the case at bar that the decedent was operating his

vehicle in a manner other than reasonable under all the

circumstances.

The trial court and the Tenth Circuit placed a reason-

able judicial interpretation upon one set of Oklahoma de-

cisions dealing with two-car accidents in relation to rules

of the road and an immutable, inflexible interpretation

upon another line of decisions dealing with railroads in

relation to rules of the road. This is a double standard.

The third paragraph of page 4 of the Tenth Circuit

Order affirming summary judgment for the defendant

states that under the law of many states the cited facts

would prevent granting of summary judgment, “but the

law of Oklahoma is clearly otherwise.” This last quoted

portion of the opinion is clearly an erroneous construction

of the Oklahoma Constitution, Statutes and decisions.

The Oklahoma Supreme Court has held in two com-

panion cases, Missouri-Kansas-Texas Railroad Company v.

Hayes, Okla., 445 P.2d 249 and 445 P.2d 254 (both 1968),

Syllabi 1. and 2. at page 250:

“1. Ordinarily, the presence of a train on a crossing,

whether moving or stationary, is sufficient notice to

the driver of a vehicle on the highway of such obstruc-

tion, and, in the absence of unusual circumstances, the

operating railroad company is not under any duty to

provide any other notice or warning. However, where

in an action for damages for personal injuries suffered

by the occupant of an automobile which collided with

a train at a crossing, the evidence indicates that the

crossing was an extra-hazardous one, and the auto

and the train arrived at it almost simultaneously, this

rule may not apply.

“9 Where, in such a case, the evidence tends to

show that the crossing, in view of the geographical

configuration of its vicinity, the presence of obstruc-

tions to motorists’ view of approaching trains, the

amount of travel over the crossing, etc., is an extra-

hazardous one, such evidence may be sufficient to sub-

mit, for the jury’s consideration, the issue of whether,

or not. the defendant railroad company was obliged to

provide more than the statutory warnings, ia order to

discharge its duty of reasonable care, even where the

obstructions to the motorists’ view are not on the rail

road's right-of-way.”

In the Hayes cases, supra, the Court allowed the jury

to determine whether the geographic configuration of the

tracks’ vicinity, the amount of travel over the crossing and

other factors rendered the crossing “extra-hazardous” and

removed it from the general rule that ordinarily the pres-

ence of a train on a crossing, whether moving or stationary,

is sufficient notice. The jury was allowed to determine

whether under the circumstances existing at the crossing

the railroad was obligated to provide more than statutory

warning in order to discharge its duty of reasonable care.

r=

The cases differ from the case at bar in that the auto-

mobile and the train in the Hayes cases met almost simul-

taneously. But this does not change the general rule an-

nounced therein which applies to the case at bar:

That under extra-hazardous conditions the presence

of a train upon the track may not constitute sufficient

notice to the motoring public of its presence and raises

a question to be determined by the jury.

It is significant also that the defendant railroad in

Hayes, the same defendant as in this case, advanced the

same defense as is asserted here, that because the train was

already upon the crossing when the auto struck it that it

was the driver’s duty to stop the car before colliding with

the train. The Court rejected the argument due to the al-

most simultaneous arrival of the train and auto, citing

Atchison, T. « S. Ry. Co. vy. Templar, 204 Okla. 460, 230

P.2d 907, which held that the fact that the train was already

upon the crossing when the auto hit it did not relieve the

defendant railroad from its duty to warn the auto’s driver

of the train’s approach.

The Court in Hayes, supra, cited Pratt, Read & Co. Vv.

New York, N. H. & H. R. Co., 102 Conn. 735, 130 Atl. 102,

25 N.C.A.A. 79, as holding:

‘*e* *& *

when the crossing is not the ordinary one,

but is more than ordinarily dangerous by being much

traveled, or by having the view of the track obstructed

by the railroad or by others, or because of the noise

making the ordimary signal difficult to hear. or by rea-

son of a like cause, it becomes a question of fact for

the jury to determine, what. if any, additional signals

or precautions should have been maintained by the

—25—

railroad in the exercise of its duty of using reasonable

care.” (Court’s emphasis. )

The Hayes collision occurred between 11:00 and 11:50

a.m., on a clear July day. Leroy Kirkland struck the side

of a black flatcar at approximately 10:20 p.m. on a dark,

cloudy December night. The contrast does not require addi-

tional comment.

What the Supreme Court of Oklahoma has done is

hold that certain elements when considered alone do not

create extra-hazardous conditions. This Petitioner contends

that were this set of circumstances in total presented to

the Oklahoma Supreme Court, it would hold the combina-

tion of circumstances sufficient for submission to a jury.

This statement is not entirely unfounded, as will be seen

from the following argument.

A case factually very similar to this case was allowed

to go to the jury in an Oklahoma District Court. The case is

Chicago Rock Island and Pacific R. R. Co., a corporation,

et al. v. Melot, No. 42662, Vol. 42, p. 423 of the Oklahoma

Bar Journal (1971). The Court of Appeals of Oklahoma

wrote an opinion sustaining the jury verdict in favor of the

plaintiff and then before the mandate was filed the case

was settled.

The Petitioner recognizes that the Melot opinion is

not the law in Oklahoma because it was not finally adjudi-

cated by the highest court in the state; but, because it is

factually so similar to the case at bar and because the lan-

guage from the opinion is so logical and compelling. some

aspects require discussion here.

—26—

The plaintiff, Mrs. Melot, received injuries when the

auto in which she was riding collided with the side of a

very slow-moving, grey, muddy-colored flatcar at 11:00

o'clock p.m. A trial by jury resulted in a favorable verdict

to the plaintiff, and an appeal was taken, the disposition of

Which has already been explained. The Court of Appeals

rejected the defendant's contention that the trial judge

should have directed a verdict for the defendant on the

grounds that the evidence was insufficient to show any

primary negligence. The defendant railroad relied prin-

cipally on the case of Kurn y. Jones, Okla., 101 P.2d 242

(1940), as authority for its position. The Appeals Court

cited from Kurn, supra, the following extremely important

principles that come into play in the case at bar.

“If the Court is of the opinion that reasonable men

might differ as to whether the trainmen in the exer-

cise of reasonable care might have anticipated the acci-

dent, then the jury should be allowed to decide the

question of primary negligence and of proximate

cause.

* * > 7 * *

“The presence of the train standing on the track did

not constitute negligence. * * * We have no statute

defining the duties of the railroad company in cases of

this character. But a party in the exercise of a legal

right may be held liable for injuries resulting there-

from to others if in the performance thereof he might

have reasonably foreseen or anticipated the injury and

failed to exercise reasonable care in warning the in-

jured party of the existing dangers. If on the evidence

reasonable men might differ as to the degree of care

required under the circumstances, the jury must say

whether the defendant was negligent in this respect.”

(Emphasis added. )

—- =

While the Melot case is not the law, the quotations are the

words of the Oklahoma Supreme Court in the Kurn case.

Apply these principles to the allegations and proven facts

in the case at bar and it leads to the inescapable conclusion

that reasonable men might conclude that the crewmen op-

erating the defendant’s train could have anticipated or fore-

seen the collision and resulting mjuries to Leroy Kirkland,

deceased; that they failed to use reasonable care in warning

the decedent of the existing danger; and that a greater

degree of care for the safety of highway travelers was re-

quired under the circumstances.

There is no need to quote extensively from depositions

in this case due to the agreement by the parties as to most

of the salient facts. However, as to the issue of foresee-

ability as that term was used in Kurn, supra, the Court

needs to have the following information, contained in the

deposition of Sgt. Eddie Becerra, the investigating officer.

Mr. Becerra questioned a crew member at the scene who

identified himself as a flagman (it was later ascertained by

deposition that this was David Shermuth Chance, Jr.), and

according to Sgt. Becerra’s deposition the following ex-

change took place, at page 10:

“Q. Did he tell you anything about how this incident

happened?

A. Yes, sir, he did.

Q. All right, would you tell us to the best of vour

recollection what he said?

A. He was there at the scene, and he was the one

that approached me first, and I asked him how it

happened and he said that he was at the switch,

which was approximately 13 steps away from the

road itself.

-

> ©

OY OB + ©

9

How do you know it is 13 steps, Officer?

I measured it myself.

What direction from the road?

South.

Thirteen steps from the South edge of Bradford

Street?

Yes, sir.

Go ahead now?

And he told me that he was there doing some-

thing and when he turned around and saw the car

coming he started running back towards the road

trying to flag this vehicle down, but couldn’t get

back there in time.”

Later in the evening Sgt. Becerra received a phone call

at police headquarters from the same man he had spoken to

at the scene and whose conversation is related above. This

time, after making inquiry as to Mr. Kirkland’s condition

and being asked by Becerra to repeat the circumstances

surrounding the collision, this man changed his original

version of the incident as follows from Becerra’s deposition

at pages 16. 17 and 18:

“Q.

> 2 >

You asked him to repeat what he had told you?

Yes, sir. And then he said that he was definitely

there on West Bradford Street.

When?

At the scene of the accident.

At the time the accident happened?

Yes, at the time of the accident.

A.

Oo, OP

Oo > © »

o> © >

= =

Can you remember what his words were when he

told you that?

That is it. That he was definitely on the middle of

the—that he was on the street.

Did he say definitely?

Yes, sir.

He used that word?

Yes.

Did you call to his attention the fact that he had

told you previously that he was not on the street

when the accident happened?

No, sir, I did not.

You didn’t?

No, sir.

Did he try to explain to you why he had told you

the first story?

No, sir.

He didn’t?

No, sir.

Was it your understandings of that phone conver-

sation that the man who _ ou had talked to at the

scene of the accident and who had told you that

he saw the Kirkland vehicle from a position by

the switch and tried to get back to Bradford Street

had now changed his story and said he was in fact

on Bradford Street when the vehicle came?

Yes.

Did he say he signaled to Mr. Kirkland while he

was there on Bradford?

Yes.

= =

Q. Did he tell vou that he signaled to Mr. Kirkland

by phone, when he talked to vou by phone, did he

say, ‘I was there on Bradford Street and I sig-

naled’?

A. No, sir. he did not.

Q. Then the only part of his version of the accident

that had changed was where he was when he saw

the Kirkland vehicle?

A. Yes.”

Might not reasonable men infer from the above con-

versation that this member of the train crew foresaw or

knew he should have foreseen the collision and that he

knew or should have known that he failed to use reason-

able care in warning the decedent? Otherwise, why would

a man with 23 vears seniority with this defendant railroad

deem it necessary to call the investigating officer and tell

him that he was in fact upon the roadway signaling to Mr.

Kirkland at the time of the collision, contrary to his original

version given at the accident scene?

Another member of defendant's crew. Arthur B. Peter-

son, engineer, was also aware of the extra hazard created

at the Bradford Street crossing. The following information

was elicited from Sgt. Eddie Becerra, at pages 8 and 9:

“Q@. Did you talk to any other crew member?

A. Yes, sir, I did.

Q. Did you talk to Mr. Peterson (the engineer) in

regard to the flatcar itself?

A. No, but he did mention something about it.

Q. What did he say?

= =

A. He said there was another gentleman that was

standimg by him, I didn’t know who he was.

@. Was he a member of the train crew?

A. I don’t think so. All three of us were carrying on

a conversation, and then Mr. Peterson said they

should have some reflectors on this kind of train

here.” (Emphasis added. )

Assuming, as we must, for purposes of summary judgment

censideration, that the evidence and reasonable inferences

to be drawn therefrom are true, then is the plaintiff not

entitled to the inference that the engineer, Mr. Peterson,

knew that the condition of the flatcar created an extra-

hazardous obstacle when parked completely across a road-

way. Could not it be reasonably inferred from the quoted

deposition that the engineer should have foreseen the nat-

ural and probable consequences of his parking this 31!.-ton

monster across the path of oncoming traffic?

The decisions of the Oklahoma Supreme Court are not

as immutable and inflexible regarding primary negligence

as appears from the Opinion of the Tenth Circuit affirming

summary judgment in favor of the defendant.

The defendant successfully asserted that the warning

Sign statute, 66 O.S. 124 (1963), had no application in this

case. The Defendant also successfully prevailed upon the

courts to announce the plaintiff guilty of contributory neg-

ligence as a matter of law under 47 OS. §11-801(a) (1971),

supra.

Under the Constitution of this state, Art. 23 $6, supra,

the defense of contributory negligence in all cases is a

question of fact and shall, at all times, be left to the jury.

=- =

Contributory negligence is not susceptible to summary

adjudication under the pleadings, facts in this case, and the

Oklahoma constitutional provision that contributory negli-

gence shall in all cases be a question of fact for the jury.

Under Oklahoma law, as it was when this collision

occurred (comparative negligence law has since been en-

acted), if the plaintiff's decedent was guilty of the slightest

degree of contributory negligence, then the jury would

upon such a finding be entitled to deny plaintiff recovery.

Nevertheless, it is a question for the jury to resolve and not

for the Court. A genuine factual dispute as to plaintiff's

decedent’s negligence has never been raised in this case

other than to cite a rule of the road, 47 O.S. $11-801(a)

(1971), supra, which was also quoted by the Tenth Circuit

Court in their opinion at page 4. The Court of Appeals went

on to say in the first paragraph on page 4:

“That court (Supreme Court of Oklahoma) has re-

peatediy held that trainmen are not required to antici-

pate that a motorist will disregard the duties thus

placed on him by the law.”

“The law” to which the Court of Appeals had reference

was 47 O.S. $11-801(a) (1971), supra.

Contra, the motorists of the State of Oklahoma are not

required to anticipate that a railroad will disregard the

duties thus placed on it by the law. 66 O.S. £124 (1963).

supra.

In Smith v. Chicago, Rock Island and Pacific Railroad

Company, Okla., 498 P.2d 402 (1972), action was by Betty

Sue Smith, Administratrix, against the defendants for

damages for the wrongful death of her husband. After

=.=

verdict and judgment for the defendants in the Distric:

Court of Canadian County, plaintiff appealed. Judgment

of the trial court was reversed and the cause remam 2d for

new trial. At page 404 of that opinion the Court reiterated

its position in regard to contributory negligence as pre-

viously set out in Sisler v. Jackson, Okla., 460 P.2d 903

(1969):

“Therein we said: ‘ * * *. Were it not for article

23, $6, of the State Constitution, which provides that

“the defense of contributory negligence or of assump-

tion of risk shall, in all cases whatsoever, be a question

of fact, and shall, at all times, be left to the jury,” it

would be necessary to hold as a matter of law that the

negligence of plaintiff precludes a recovery.’ ”

And further on the same page:

“What we did hold was that there was evidence of

contributory negligence, and under Article 23, §6,

Const., it was the duty of the court to let the jury de-

termine whether there was in fact contributory negli-

gence, and if so, whether this negligence was the cause

of the death, or contributed thereto.

“The receiver for the railroad company (Dickinson)

contended in this court and in the Supreme Court of

the United States that the railroad company had a

vested right in the common law defense of contribu-

tory negligence which (he contended) was made per-

manent, or frozen in, by the 14th amendment to the

U. S. Constitution. Both courts rejected that view.”

The Smith case, supra, provides us with the historical

application of Article 23, $6 of the Oklahoma Constitution.

Pricr to the case of Miller v. Price, Okla., 33 P.2d 674

(1934), the Oklahoma Supreme Court condoned the prac-

tice of the lower courts giving an instruction on contribu-

=

tory negligence although there was no evidence of con-

tributory negligence. This practice was condemned in Mil-

ler, supra, and the Court announced that henceforth the

same rules as to primary negligence would apply to the

application of the defense of contributory negligence; that

is, the facts upon which said defense are based would be

passed upon hy a jury without interference on the part of

the court.

Three rules of law were established in the Miller case,

supra, which were recited by the Court at page 405: (1)

The defense of contributory negligence, although pleaded,

is not a defense until there is some evidence of contributory

negligence: (2) if there is any evidence of contributory

negligence, it is within the exclusive province of the jury

to determine whether there was in fact contributory negli-

gence, and if so, whether the contributory negligence

caused or contributed to the injuries; and (3) that the de-

fense of contributory negligence is not a question of law

for the jury.

There is no fixed standard in the law of Oklahoma by

which a court may say in every case what conduct shall be

considered reasonable and prudent, and what shall consti-

tute due care in approaching a crossing under any aid al]

circumstances. Accordingly, the law has relegated the de-

termination of such questions to the trier of facts. It is for

the trier of facts to note the special circumstances and sur-

roundings of each particular case and then say whether the

conduct of the parties measured up to the standard re-

quired by law. To remove these questions from the trier of

fact when a jury triai is requested is to take a giant step

toward abolition of trial by jury.

—-35—

The application of the Highway Safety Code of Okla-

homa as a bar to recovery by the plaintiff as a matter of law

is error. In Gross v. Southern Railway Company, 414 F.2d

292 (C.A. 5th, 1969), the defendant railroad urged as au-

thority for sustaining the lower court's granting of sum-

mary judgment application of Secticn 105-603 of the

Georgia Code Annotated as follows:

“If the plaintiff by ordinary care could have avoided

the consequences to himself caused by the defendant’s

negligence, he is not entitled to recover. In other cases,

the defendant is not relieved, although the plaintiff

may in some way not have contributed to the injury

sustained.”

The rule was defined in the following language:

“A person can not be charged with the duty of using

any degree of care and diligence to avoid the negli-

gence of a wrongdoer until he has reason to apprehend

the existence of such negligence. The duty imposed

by law upon all persons to exercise ordinary care to

avoid the consequences of another's negligence does

not arise until the negligence of such other is existing,

and is either apparent, or the circumstances are such

that an ordinarily prudent person would have reason

to apprehend its existence * * *. Failure to exercise

ordinary care on the part of the person injured before

the negligence complained of is apparent or should

have been reasonably apprehended will not preclude

a recovery.” (Emphasis added).

The defendant said the rule barred plaintiff's recovery

because the driver of plaintiff's car failed to heed the warn-

ings and instructicas of two highway signs, and that by so

failing was guilty of negligence per se. But the Court re-

jected this argument saying that even if Gross was thus

="

guilty of negligence, such negligence does not automatically

bar a recovery by plaintiffs. This, said the Fifth Circuit,

is a jury question. The defendant in Gross, supra, then

alleged violation by the plaintiff of another section of the

Georgia Statutes, Section 68-1661, which provides:

“Whenever any person driving a vehicle approaches

a railroad grade crossing, the driver of such vehicle

shall stop within 50 feet but not less than 15 feet from

the nearest rail of such railroad, and shall not proceed

until he can do so safely, when:

* *< * * - *

“(¢) An approaching train is plainly visible and is

in hazardous proximity to such crossing.”

The Court cited a la..dmark case construing this stat-

ute, Missouri-Kansas-Texas Railroad Co. vy. McFerrin, Tex.

Civ. App. 1956, 291 S.W.2d 931, 934, which held that neither

duty recited in the statute comes into existence until these

three conditicns exist: (1) A train must be “approaching”

the crossing; (2) the approaching train must be “plainly

visible,” and (3) the train must be “in hazardous prox-

imity” to the crossing. The Court in Gross. supra, said the

statute does not apply in the instant case, becaues the very

first condition required by the statute, as pointed out in

the McFerrin case, supra, was not present; namely, the

train was not “approaching” the crossing, but had already

passed over it when Gross approached it in plaintiff's car.

Further, the Fifth Circuit continued, even if it could be

said, arguendo, that the statute is applicable to our case.

we still have a jury question as to whether or not the train

was, or should have been, “plainly visible” to Gross in the

exercise of ordinary care, as he approached the crossing.

= =

The Fifth Circuit then applied the objective common-

law test of the reasonably prudent man to the situation and

said it must appear, as a matter of law, that a reasonably

prudent person, situated as was the motorist and exercising

ordinary care for his own safety, should have seen the train

which was already occupying the crossing. But, again, even

if the statute were applicable the question of contributory

negligence would still have to be submitted to and decided

by a jury.

It is apparently much more hazardous from a liability

point of view for the defendant, M.K.T., to operate its trains

within the Fifth Circuit jurisdiction than within the Tenth

Circuit. However, if the existing Oklahoma Constitutional,

Statutory and case law is judiciously applied, the scales of

justice may become equally balanced between the two

jurisdictions.

Federal Courts in the Tenth Circuit are not bound by

Oklahoma Constitution, Art. 23 $6, requiring the issues of

contributory negligence and assumption of risk to be sub-

mitted to the jury so long as there is any evidence to sup-

port them. However, the defense of contributory negligence

is an affirmative defense which must be pleaded and sup-

ported by some evidence. Miller v. Irby, 227 F.2d 942 (C.A.

10th, 1955). Some evidence is required for the Court to

take an issue of fact and decide it as a matter of law. Miller

v. Irby, supra; Oklahoma Natural Gas Co. v. McKee, 121

F.2d 583 (C.A. 10th, 1941). The above cases deal with dis-

position of a case after evidence had been given at trial.

The District Court in Heath v. John Deere Company of

' Kansas City, 308 F.Supp. 235 (D.C.W.D. Okla., 1969) de-

—38—

nied defendant's Motion for Summary Judgment Stating

at page 308:

“In a summary judgment Situation, it is a rare case

where summary judgment may be granted resolving

the issues of contributory negligence and assumption

of risk as a matter of law.” (Emphasis added. )

Applying this general rule as propounded by the Okla-

homa courts, who, other than the jury, is to say whether

under all of the facts, circumstances and reasonable infer-

ences to be drawn therefrom, that plaintiff's contributory

negligence. if anv, was the proximate cause of decedent's

injuries?

At page 5 of the Tenth Circuit Court's Opinion Affirm-

ing Summary Judgment in this case. the court states that

its decision in Smoot y. Chicago, Rock Island & Pacific

Railroad Co., Okla., 378 F.2d 879, 874 ( C.A. 10th, 1967),

is clearly distinguishable from the case at bar because the

crossing was blocked by a fast moving train but a split

second before collision, allowing no appreciable time for

notice of the danger.

In Smoot, supra, the plaintiff's decedent was a passenger

in a car which met defendant's train almost simultaneously

at a crossing in Oklahoma City. Defendant’s Motion for

Summary Judgment was based upon the undisputed fact

that decedent’s car struck the train and that, therefore, the

train was already upon the crossing. It was argued that

once the train took occupancy of the crossing it became im-

pervious to liability. In rejecting this contention and re-

versing the trial court's Order Sustaining Summary Judg-

ment the Tenth Circuit Court said:

—_39—

“The Oklahoma decisions which preclude recovery

of damages for one who drives his vehicle into a train

already on a crossing are premised on the theory that

the train’s presence on the crossing in itself constitutes

sufficient notice or warning to the driver of a vehicle.

Common sense dictates that, to be meaningful, such

notice or warning by occupancy must be timely enough

to alert the driver of a motor vehicle to the impending

danger and afford him adequate opportunity to take

the necessary precautions to prevent collision.” (Em-

phasis added. )

Does not “common sense” also dictate that for a rail-

road car standing on a crossing under the conditions in this

case to constitute a warning to the motorists and thereby

make it subject to the general rule, the train would have

to be visible for a distance at least equal to the required

statutory warning, which only provides that the warning

be “suitable”? Query: Who should dictate whether a warn-

ing device is “suitable”?

The Smoot case, supra, deals with the specific problem

of the length of time that a train has been in occupancy

of the crossing prior to the collision and states that such

time lapse must be sufficient to alert the public to the im-

pending danger. More important, the case says that oe

driver of a motor vehicle is entitled to sufficient warning

of the presence of a train upon a track to enable the driver

to take precautions to prevent the collision. We believe that

whether or not Leroy Kirkland had such warning is a

question for the trier of fact.

Adequacy of warning was an issue in the case of Dunn

v. St. Louis-San Francisco Railway Company, Okla., 370

— =

F.2d 681 (C.A. 10th, 1967). Plaintiff's decedent was a pas-

senger in a truck which was driven into the side of a box-

car that was either standing or just stopping, halfway across

the highway at night. The Court held that it was proper

for the case to be submitted to the jury (verdict was for

the defendant) on the question of whether an inoperative

wig-wag warning device constituted an invitation to the

driver of the truck t» enter the crossing. It is significant

that this case was 2 lowed to go to the jury in view of

substantial evidence given by unbiased witnesses that a

trainman was standing in the roadway waving an electric

lantern at the time the plaintiff drove his vehicle into the

train. The Court of Appeals in affirming the verdict and

judgment for the defendant railroad stated that the ques-

tion which the trier of fact had to determine was whether

the boxcar had entered the intersection long enough ahead

of the crash for a reasonably prudent person to have been

warned in time.

The trier of fact in the Dunn case. supra, was entitled

to determine the adequacy of the warning where a de-

fective warning device was supplanted by a signalman at

the crossing. Would it not follow, indeed demand, that in

the case before this Court, where there was an unpainted

(defective) crossing sign and no crewman or other warn-

ing device to take its place, the jury be allowed to deter-

mine the adequacy of the warning, or indeed, to determine

whether there was any warning at all!

Dunn and Smoot, supra, confirm the argument of the

plaintiff. That is, that whether or not the black, immobile

flatcar upon defendant's crossing was a suitable substitute

—

warning for the “suitable” statutory warning device re-

quired by law is a question of fact for the trier of fact.

Further, the rules propounded in the Smoot case require

that for the train to constitute sufficient warning such

notice or warning by occupancy must be timely enough

to alert the driver of the impending danger. Is it not for

the jury to say what amount of time that the train oc-

cupies the crossing will constitute adequate warning? And

does not that determination depend upon all the circum-

stances surrounding the collision?

Had the flatcar been moved onto the crossing in broad

daylight, then no time lapse at all might have been ade-

quate warning. But to move the flatcar across the road

on a very dark, cloudy night under the prevailing circum-

stances, several hours time might be considered by a jury

as inadequate time to warn an approaching motorist.

Proximate cause is often left to permissible inferences

from established facts. Champlin v. Oklahoma Furniture

Mfg. Co., 269 F.2d 918, 74 A.L.R.2d 978 (C.A. 10th, 1959).

The permissible inferences which mav be drawn from

the facts in this case are numerous and will be discussed

further infra.

The substantive law of the State of Oklahoma is the

same in regard to the duty owed to the traveling public

by a railroad as in South Carolina; that is, liability for

injuries resulting from collision with a standing railroad

car will depend on whether the extra-hazardous condition

has been created by the railroad. The case of Peagler v.

Atlantic Coast Line Railroad Company, S.C., 107 S.E.2d 15

(1959), is interesting by comparison and by contrast to

— =

the case at bar. In the Peagler case, the defendant parked

completely across a highway, a low, black empty pulpwood

flatear. It was night and the roadway was black surfaced.

A Chevrolet auto driven by the plaintiff collided with the

side of the flatcar, resulting in personal injuries for which

he sued and recovered. The crossing had no flashers or

blinker lights and no flares, fusees or flagman was present

to warn the public of the motionless car. The flatear was

42 feet 8 inches in length (M.K.T.’s car was 48 feet 6

inches in length). The avenue approaching the crossing

was straight and level for a distance of approximately 1,200

feet. The driver was driving on the right side of the high-

way in the direction he was traveling. Leroy Kirkland was

in his proper lane on an unlevel road as he approached

the crossing and then skidded 32 feet in a straight line to

the center of the road. In the Peagler case, the driver was

misled by auto lights on the opposite side of the flatcar.

In our case, the only light in the Vicinity was a farm light

on the opposite side of the flatcar. We will never know

whether the farm light behind the flatcar misled Leroy

Kirkland into believing the road was clear. He didn’t live

long enough to become a witness.

In Peagler, there were no flashing lights, no gates, and

even though there were five train crewmen aboard the

train, none bothered to flag the crossing, nor were there

any flares or fusees in place.

In contrast to the above facts, which are very similar

to those in the case at bar, the flatcar in the Peagler case

had white letters and figures upon it; the M.K.T. flatear

in this case did not. After verdict for the plaintiff, the

—434—

Supreme Court of South Carolina, in reviewing the above

facts, stated at page 9:

“It is reasonably inferable from all the testimony

that a reasonably prudent person, even if he knew of

the existence of the crossing, would have concluded

from the automobile lights approaching from the north

side of the crossing, and misled by the stillness and

blackness of the empty flatcar obstructing the high-

way, which blended with the black surface of the

highway, that the crossing was clear and unobstructed

and that no train was using the track. It is reasonably

inferable from the evidence that the diversion of re-

spondent’s attention by the shifting headlights of an

oncoming car added to the obscurity of conditions ex-

isting at the crossing at the time so as to produce a

deceptive and delusive condition. It is reasonably in-

ferable from the testimony that an unusual and exira-

hazardous situation was created at the crossing. It is

likewise inferable from the testimony that because of

the unusual and extra-hazardous condition at the cross-

ing, the same having been created by the appellants,

that they should have taken whatever precautionary

measures due care dictated to warn the traveling pub-

lic of the presence of the unlighted flatcar spanning

the highway.” (Emphasis added. )

All of the reasonable inferences that were made from

the evidence in the Peagler case would certainly be in-

ferable from the allegations and facts in the case at bar.

It is a fundamental maxim that on a motion for sum-

mary judgment the court cannot try issues of fact: it can

only determine whether there are issues to be tried. The

inferences to be drawn from the underlying facts must be

viewed in the light most favorable to the party opposing

—

the motion. Thus, the standard to be applied on a motion

for summary judgment is analogous to that used on a mo-

tion for a directed verdict. American Manufacturers Mut.

Ins. Co. v. American Broadcasting-Paramount Theatres,

Inc., 11 F.R.Serv.2d 1220, 388 F.2d 272 (CA. 2nd, 1967).

Even where the facts are not in dispute, such as in

the case at bar, summary judgment should not be granted

when the parties nevertheless disagree as to the inferences

which may properly be drawn. A jury of reasonable men

could draw different inferences from defendant’s failure

to meet minimum warning sign requirements under the

statute.

The court's discretion plays no role in granting of a

summary judgment, it being held that the granting of such

judgment must be proper or such action is subject to re-

versal. National Screen Service Corp. v. Poster Exchange,

Inc., 6 F.R.Serv.2d 1039, 305 F.2d 647 (C.A. 5th. 1962).

The United States Supreme Court has held in United

States v. Diebold, Inc., 369 U.S. 654, 8 L.Ed.2d 176. 82 S.Ct.

993 (1962), in a civil antitrust suit brought under the

Clayton Act, that where there is a choice of inferences to

be drawn from subsidiary facts, summary judgment cannot

be sustained. In the same opinion this Court held that in-

ferences to be drawn from the facts must be viewed in the

light most favorable to the party opposing the motion.

If inconsistent hypotheses might reasonably be drawn

from undisputed facts over which the minds of reasonable

men might differ, then a case is not vulnerable to summary?

judgment.

— =

CONCLUSION

If the trial court and the Tenth Circuit Court's affirma-

tion of summary judgment is allowed to stand, then the

motoring public of Oklahoma is in extreme danger of bodily

injury and death from inevitabie collisions with railroad

cars which will be left immobile on unmarked, unlighted

crossings at night under hazardous conditions.

The Supreme Court of this state did not anticipate nor

intend when the general rule was adopted in Raley v.

Thompson, supra, that such immutable unbending appli-

cation would be attached to their pronouncement of the

law. The rule, if applied with reason and the enlightened

intent to do “justice for all,” can be a fair rule, as was

intended.

If the Court had intended the rule to be rigid and un-

bending, why would the word “ordinarily” and the phrase

“in the absence of unusual circumstances” have been in-

cluded? The alarming aspect of this case is that the rule

has been applied in a rigid, uncompromising manner.

When the general rule is viewed in the sharp glare

of sunlight, it is a reasonable pronouncement. A motorist

should be charged with notice of the presence of a train

standing across a roadway in plain sight—and he has been

so charged in this state.

However, the clear exception to that general rule is

that where extra-hazardous conditions exist then the gen-

eral rule has no application.

—46-—

The question which keeps returning in this case is how

may a railroad create a condition more hazardous to the

public than the one which existed for Leroy Kirkland on

the night of December 23, 1971? No single element alone

can be said to have pushed the situation over into the

“extra-hazardous” category. It was each and every attend-

ing circumstance which created the trap into which Kirk-

land drove and which ultimately cost him his life. The

fact that the flatcar was low in profile, black, unpainted,

unmarked, empty and without lights or reflectors would

not be persuasive had this tragedy occurred in the day-

light; the fact that the roadway, beginning approximately

120 feet to the east of the collision site, was irregular in

configuration and was constructed of black asphalt would

not be meaningful had the flatcar been positioned upon the

track during daylight hours; the fact that no light, even

from street lights, was present at the scene, with the ex-

ception of a farm light 100 vards to the west or behind

the fatcar would have been moot in daylight hours; and

the fact that the statutory crossing sign was grey, un-

painted and unmarked and that the defendant neglected

to post a signalman or merely light a flare or fusee or

other warning device could have been unnecessary during

the daytime; but take these conditions and add a dark,

cloudy night and it is suddenly the most dangerous of situ-

ations—no human being can be charged with the foresight

to anticipate tl.e camouflaged trap placed completely across

the roadway upon which he is legally traveling in a reason-

able manner. What reasonably prudent man could conceive

of such a condition? A more hazardous condition could not

have been present even if it had been planned.

_—

The best estimate of the location of the crossarm warn-

ing sign is given in the depositions as approximately 10 to

12 feet north and 25 feet east of the tracks where the col-

lision occurred. The facts are undisputed that this sign was

in a state of bad repair; it was grey, there was no paint

or lettering upon it. Would Leroy Kirkland have seen the

statutory warning if it had been in good repair? Could not

a jury infer from the evidence that (1) the disrepair of

the sign was the proximate cause of his death or (2) that

the sign, even had it been freshly painted, was inadequate

warning under the conditions prevailing at the scene and

was therefore the proximate cause of his death?

It is undisputed that the railroad violated the statutory

requirement of erecting a “suitable” warning device at this

crossing. This violation creates a case of primary negligence.

Buck v. Missouri-Pacific Railroad Company, supra.

The defendant counters that the plaintiff's failure to

bring his vehicle to a stop within the “assured clear dis-

tance ahead” creates a case of contributory negligence.

Oklahoma City-Ada-Atoka Ry. v. Nickels, 343 P.2d 1094

(Okla. 1959).

Both questions can only be resolved by the trier of

facts considering all attending circumstances, facts and the

reasonable inferences to be drawn therefrom.

It is therefore respectfully submitted that the grant-

ing of summary judgment in this case constitutes reversible

—_— =

error and the Petitioner, plaintiff below, asks this Honor-

able Court to accept this case for review.

HIRAM KeitH Myers, Jr., of

Myers AND CuMMINS

125 North Second Street

Hollis, Oklahoma 73550

405-688-3329

Attorney for Petitioner

May, 1975

APPENDIX “A”

FILED

MAR 29 1974

REX B. HAWKS

CLERK, U. S. DISTRICT COURT

BY s Ruth T. Olsen

DEPUTY

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

DIXSIE KIRKLAND, individually )

and as Executrix of the Estate of )

LeRoy Kirkland, deceased, )

Plaintiff, )

V. )

) No. Civ-73-140-C

MISSOURI-KANSAS-TEXAS )

RAILROAD COMPANY, et al. )

Defendants. )

ORDER SUSTAINING MOTION FOR SUMMARY

JUDGMENT AND DISMISSAL

On this 29th day of March, 1974, upon consideration

of briefs of counsel, the Motion of the Defendant for Sum-

mary Judgment is hereby sustained and IT IS, THERE-

FORE, ADJUDGED AND DECREED that this action be

and the same is hereby dismissed.

s' Stephen S. Chandler

UNITED STATES DISTRICT JUDGE

ENTERED IN JUDGMENT DOCKET ON

MAR 29 1974

ADELAIDE HOLSTON, DEPUTY

eniies

APPENDIX “B”

FILED

DEC 18 1974

HOWARD K. PHILLIPS

CLERK, UNITED STATES

COURT OF APPEALS

TENTH CIRCUIT

NOT FOR ROUTINE PUBLICATION

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

November Term, 1974

DIXSIE KIRKLAND, Administratrix

of the Estate of Lerov Kirkland.

deceased,

eee ee”

Plaintiff-Appellant,

V. No. 74-1280

(Civil 73-140-C }

—

)

MISSOURI-KANSAS-TEXAS )

RAILROAD COMPANY, )

a corporation, )

Defendant-Appellee. )

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

Submitted on the briefs.

William M. Fancher, of Fancher & Moore, Hollis, Oklahoma.

and Keith Myers, of Myers & Cummins, Hollis. Oklahoma,

on the brief for Appellant.

H. D. Binns, Jr., William J. Ross, and Donald L. Cooper,

Oklahoma City, Oklahoma. on the brief for Appellee.

Before LEWIS, Chief Judge; SETH and McWILLIAMS.

Circuit Judges.

— =

[APPENDIX]

LEWIS, Chief Judge.

Dixsie Kirkland, administratrix of the estate of Leroy

Kirkland, appeals from a summary judgment entered by

the United States District Court for the Western District

of Oklahoma. Mrs. Kirkland, an Oklahoma resident. sued

the Missouri-Kansas-Texas Railroad Company, a Delaware

corporation, for damages resulting from Leroy Kirkland’s

death, which occurred after the pickup truck he was driv-

ing collided with the railroad’s stationary flatcar standing

at a highway crossing. On the basis of the pleadings and

discovery materials, the District Court concluded that the

plaintiff's evidence did not raise a triable issue of fact under

the law of Oklahoma.

Viewed in the light most favorable to the plaintiff,

the pertinent facts are as follows.

At 10:20 p.m. on December 23, 1971, Leroy Kirkland

was driving west on Bradford Street in Altus, Oklahoma,

when his truck collided with defendant’s flatcar at a cross-

ing maintained by the defendant. As a consequence of in-

juries sustained in the collision, Kirkland died ten days

later. At the time of the accident, the defendant's flatcar,

which occupied the entire crossing and was connected on

either side to a train, had been immobile on the tracks for

twenty to forty seconds. The flatcar was unpainted, its color

was black due to accumulated grease or oil, and it was un-

marked by any visible lettering, lights or reflectors. The

top of its bed stood three or four feet off the track and was

supported by a two-foot thick under-structure. The night

was dark. There was no illumination in the vicinity except

for a distant farmlight to the west of the crossing, which

plaintiff claims might have deceived the decedent into be-

lieving that the crossing was clear. The readway in the

Vicinity of the crossing was made of black asphalt: the

topography of the approach to the crossing was irregular

with rises and dips in roadway elevation. The defendant's

cross-butt warning device, which was gray in color and un-

marked, was the only warning signal at the crossing.

—iv--

[APPENDIX)}

The railroad’s crew did not flag the crossing. The

crew's flagman at the time of the accident was assisting

another member of the crew in operating a switching de-

vice some forty feet from the crossing. State police Serg-

eant Eddie Becerra, who investigated the accident, stated

by deposition that a man identifying himself as the train's

flagman told him just after the accident that when he

saw Kirkland’s car approach the crossing he ran from the

switching device toward the roadway in an attempt to flag

the vehicle down.

Stripped to essentials. plaintiff-appellant’s chief argu-

ment is that the railroad’s crew knew or should have known

that under the circumstances at the Bradford Street cross-

ing on the night of the accident an approaching vehicle

would be unable to observe a Stationary flatcar spanning

the roadway and should have posted adequate warning of

the danger.

The general rule in Oklahoma is that the presence of

a train or railway car on a crossing is sufficient notice to

the driver cf a vehicle on the highway of obstruction; in

the absence of unusually hazardous circumstances the op-

erating railway company is under no duty to provide notice

or warning of the danger to drivers. Raley v. Thompson,

225 P2 171 ‘Okla. 1950). The rule stems in part from the

Oklahoma Supreme Court's application to occupied crossing

cases of the state statute requiring drivers of motor vehicles

on the highwav to drive at a speed and with a degree of

care that will enable them to stop within the clear distance

ahead.' That court has repeatediv held that trainmen are

i? OS. § 1!-8Ol(ay (1971) provides:

Any person driving a vehicle on a highway shail drive the same at

a careful and prudent speed not greater than nor less than is reason-

able and proper. having due regard to the traffic. surface and width

of the highway and any other conditions then existing, and no per-

son shall drive any veinicle upon a highway at a speed greater than

will permit him to bring it to a stop within the assured clear distance

ahead.

—_—\—

[APPENDIX]

not required to anticipate that a motorist will disregard the

duties thus placed on him by the law. See, e.g., Oklahoma

City-Ada Atoka Ry. v. Nickels, 343 P2 1094, 1098-99, (Okla.

1959); Kurn v. Jones, 101 P2 242, 244 (Okla. 1940).

The implicit exception to the general rule is that where

conditions at an occupied crossing are so hazardous as to

give notice to trainmen that the careful driver of a prop-

erly equipped vehicle will not be able to observe and stop

for the obstruction, the trainmen have the duty to give

adequate warning. Smoot v. Chicago, R.I. & P. Ry., 10 Cir.

378 F2 879, 884; see aiso Thompson v. Carter, 137 P2 956,

958 (Okla. 1943).

Under the law of many states the cited facts would

assuredly prevent the granting of a summary judgment but

the law of Oklahoma is clearly otherwise. Each of the

factual circumstances upon which plaintiff relies has been

specifically negatived as sufficient to impose liability on the

railroad. These factors include blocking a crossing with a

low-profile flatcar, immobility of the train, darkness, back-

ground lights, and variations in road levels. See Oklahoma

City-Ada-Atoka Ry. v. Nickels, 343 P2 1094 (Okla. 1959):

Kansas, O. & G. Ry. v. Painter, 333 P2 547 (Okla. 1953):

Atchison, T. & S.F. Ry. v. Templar, 230 P2 907 (Okla.

1951); Raley v. Thompson, 225 P2 171 (Okla. 1950); Flem-

ing v. Loch, 195 P2 942 (Okla. 1948); Thompson v. Carter,

137 P2 956 (Okla. 1943); Kurn v. Jones, 101 P2 242 (Okla.

1940). Our decision in Smoot v. Chicago R.I. & P. Ry...

supra, is clearly distinguishable. In Smoot the crossing was

blocked by a fast moving train but a split second before

collision, allowing no appreciable time for notice of the

danger.

The judgment is affirmed.

=

APPENDIX “C”

-—

NOVEMBER TERM — JANUARY 6, 1975

Before Honorable David T. Lewis, Chief Judge, Honorable

Oliver Seth, and Honorable Robert H. McWilliams. Circuit

Judges

DIXSIE KIRKLAND. individually

and as Executrix of the Estate

of Leroy Kirkiand, Deceased.

Plaintiff-Appellant.

V.

)

)

)

)

)

) No. 74-1280

MISSOURI-KANSAS-TEXAS RAIL- )

ROAD COMPANY. a corporation and )

JOHN DOE. whose true name is

unknown to this plaintiff, )

Defendants-Appellees. )

This matter comes on for consideration of the Petition

for Rehearing filed by Appellant in the captioned cause.

Upon consideration whereof, the Petition for Rehearing

is denied.

Ss Howard K. Phillips

HOWARD K. PHILLIPS

Clerk

A true copy

Teste

Howard K. Phillips

Clerk, U. S. Court of

Appeals, Tenth Circuit

By s Anne Cabot

Deputy Clerk