Opposition Brief — Kirkland v. Missouri-Kansas-Texas Railroad

TABLE OF CONTENTS

————

PAGE

Statement of the Case 1

Response to Reasons for Granting the Writ 2

Response to Petitioner’s Heading “Questions Presented

for Review” sa 4

Argument and Authorities

A. Response to Petitioner’s Question No. 1

B. Response to Petitioner’s Question No. 2 5

C. Response to Petitioner’s Question No. 3 16

D. Response to Petitioner’s Question No. 4 : 17

E. Response to Petitioner’s Question No. 5 19

F. Response to Petitioner’s Question No. 6 20

G. Response to Petitioner’s Question No. 7 . &

H. Response to Petitioner’s Question No. 8 24

Summary _. = oa 26

Conclusion Sx eae : 29

TABLE OF AUTHORITIES

CASES:

Atchison, Topeka and S. F. Ry. Co. v. Templar, 230

P.2d 907 (Okla. 1951) __- 5-6, 10-11, 13-14, 18, 26

Buck v. Missouri-Pac. R. Co., 252 F.Supp. 704 (U.S.

en ee Ss SO a 12

Bushman Const. Co. v. Air Force Academy ‘Hous-

ing, Inc., 327 F.2d 481 (C.A. Colo. 1964) cae

liaise

AUTHORITIES CONTINUED PAGE

Cain v. St. Louis-San Francisco Railread Co., 293

P.2d 355 (Okla. 1956) 5, 14, 15, 27

Chicago, Rock Island & Pac. R. R. Co., et al. v. Melot,

No. 42662, Vol. 42, p. 423, Bar Journal (1971) 7

Dunn v St. Louis-San Francisco Ry. Co., 370 F.2d

681 (10 C.C.A. 1967) _. : 13

Erie R. R. Co. v. Tompkins, 58 S.Ct. 817, 304 U.S. 64,

82 L.Ed. 1188 (1938) a . ; . 2

Fitzgerald v. Westland Marine Corp., 369 F.2d 499

(CA. N.Y. 1966) 4

Fleming v. Loch, 195 P.2d 942 (Okla. 1948) 6,12, 13,15

Gross v. Southern Ry. Co., 414 F.2d 292 (C.A. 5th

1969) 21

Holt v. Thompson, 115 F.2d 1013 (10th C.C.A. 1940) 6,

14,15

Kansas, Oklahoma & Gulf Railway Co. v. Painter,

333 P.2d 547 (Okla. 1958) 5, 14, 15, 26

Kurn v. Jones, 101 P.2d 242 (Okla. 1940) _- 6, 7,

8-9, 15, 18, 19, 24, 25, 27

Lowden v. Bowles, 105 P.2d 1061 (Okla. 1940) 6, 14,

15, 19, 25

Missouri-Kansas-Texas R. Co. v. Castor, 410 P.2d 67

(Okla. 1965) _ 9,10

Missouri-Kansas-Texas R. Co. : v. Hayes, 445 P. 2d 249,

445 P.2d 254 (Okla. 1960) : 9,10

Missouri-Kansas-Texas R. Co. v. McFerrin, 291 S.W.

2d 931 (Tex.Civ.App. 1956) 21

Oklahoma City-Ada-Atoka Railway v. Nickels, 343

P.2d 1094 (Okla. 1959) ; 5, 6, 18, 24, 26, 28

Peagler v. Atlantic Coast Lines R. Co., 107 S.E.2d

15 (S.C. 1959) 24

Raley v. Thompson, 225 P.2d 171 (Okla. S.Ct. 1950) 5, 6,

13, 15

Roberts v. Merrill, 386 P.2d 780 (Okla. 1963) ee | i

—iii—

AUTHORITIES CONTINUED

Smith v. Clark, 256 Pac. 36 (Okla. 1927) ~

PAGE

18

Smoot v. Chicago, R. I. & P. Ry. Co., 378 F.2d 879

(OCCA). |

Stills v. Mayor, 438 P.2d 477 (Okla. 1968) -

Thompson v. Carter, 137 P.2d 956 (Okla. 1943)

CONSTITUTIONAL PROVISION:

Oklahoma Constitution, Art. 23, Sec. 7

STATUTES:

20 O.S. § 30.5 (1970)

47 OS. § 11-201(a) (1971)

66 O.S. § 124 (1963) -

76 O.S. $5 (1970)

OTHER AUTHORITIES:

10

17

6,15

16

7

19, 22, 23

11, 12, 14

16,17

Federal Rules of Civil Procedure 56(b)(c) 28 United

States Code Annotated (1963)

In the

Supreme Court of the United States

Octoser TERM, 1975

No. 74-1385

Drxsiz KirKLAND, Administratrix of the Estate of

Leroy KIRKLAND, deceased,

Petitioner,

VERSUS

MissourRI-KANSAS-TEXAS RAILROAD COMPANY,

a Corporation,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

In response io the Petition for Writ of Certiorari of

the petitioner, Dixsie Kirkland, the respondent, Missouri-

Kansas-Texas Railroad Company, respectfully submits:

STATEMENT OF THE CASE

The following facts appear in the record and are re-

spectfully submitted in addition to the petitioner’s state-

ment of the case:

The train and flat car involved in this accident had

been completely stopped upon the crossing for a minimum

of twenty (20) to forty (40) seconds prior to the collision

(Dep. of John D. Blancett, pp. 26, 35).

pos SS

The railroad crossing located approximately one hun-

dred fifty (150) feet east of respondent’s tracks (peti-

tioner’s decedent’s vehicle approached from the east) was

owned by a railroad other than respondent and was marked

by a railroad crossing sign (Dep. of Arthur B. Peterson,

p. 35; Dep. of Eddie Becerra, p. 41).

The flat car which petitioner’s vehicle struck was a

“bulkhead” flat car. That car was constructed with ends on

it and under the bed of the car was a solid structure ex-

tending down approximately two and one-half (2!) feet

(Dep. of John D. Blancett, pp. 51, 52, and Dep. of D. S.

Chance, Jr., p. 19).

The record contains no evidence, contrary to peti-

tioner’s assertion, that the switch was “defective.” The

record does indicate that it was difficult to operate.

RESPONSE TO REASONS FOR GRANTING

THE WRIT

(pages 8 and 9 of Petitioner's brief)

The United States District Court for the Western Dis-

trict of Oklahoma correctly sustained respondent's Motion

for Summary Judgment following the decisions of the Su-

preme Court of Oklahoma. The action of the District Court

was correctly affirmed by the Tenth Circuit Court of

Appeals.

The common-law action in tort arising from an auto-

train accident, in Oklahoma, failed to show any evidence of

primary negligence on the part of respondent. Each of the

facts and allegations made by petitioner has been rejected

vations

under the decisions of the Oklahoma Supreme Court as

sufficient evidence of primary negligence in such cases to

submit the issue of negligence to a jury, as a matter of

state law.

The action was removed from the state court to the

Federal court on diversity of citizenship. Oklahoma law

is applicable. A review of this case would be of no im-

portance to any jurisdiction on these facts, except to the

State of Oklahoma. Decisions of the Oklahoma Supreme

Court conclusively establish, under the facts present in this

case, that the evidence does not establish any evidence of

primary negligence on the part of the respondent.

It is not questioned by respondent that issues of negli-

gence are not usually susceptible to determination by sum-

mary judgment. However, to hold the summary judgment

improper would constitute a complete disregard of Okla-

homa law. If summary judgment was not allowed in this

case it would, in effect, not be proper in any negligence

action, regardless of the facts. Sustaining a motion for sum-

mary judgment is not a denial of a right to jury trial nor

a departure from the usual course of judicial proceedings,

when, under applicable state law, one party is entitled to

judgment as a matter of law. Otherwise, summary judg-

ment would be improper in any case where a plaintiff was

entitled to a jury trial on the issues, regardless of the evi-

dence presented, and the issues of law applicable.

The substantive law of Oklahoma is applicable. The

evidence has been reviewed by two courts (United States

District Court for the Western District of Oklahoma and

the Tenth Circuit Court of Appeals). Both courts, follow-

ee

ing Oklahoma law, found there was no evidence of primary

negligence on the part of the respondent. Respondent,

under Oklahoma law, was entitled to a judgment as a mat-

ter of law.

All other issues raised by petitioner, other than whether

respondent was entitled to a judgment as a matter of law,

have been raised for the first time in this appeal.

RESPONSE TO PETITIONER’S HEADING

“QUESTIONS PRESENTED FOR REVIEW”

(pages 3-5 of Petitioner’s brief)

ARGUMENT AND AUTHORITIES

Respondent will hereinafter discuss each question pre-

sented by petitioner for review. In this regard questions

which involve the same legal principles will be combined

for the sake of brevity.

A. Response to Petitioner’s Question No. 1 (Petitioner’s

brief, p. 3): “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 plaintiff’s de-

cedent.”

The action in the trial court would be controlled by

the decisions of the Oklahoma Supreme Court, applying

Oklahoma law in such cases. The propriety of summary

judgment depends upon whether or not any factual issue

remains to be tried. The pleadings are to be liberally con-

strued in favor of the party opposing the motion. However,

the formal allegations of the pleadings are pierced on a

motion for summary judgment. Pleadings do not stand as

ae

dispositive of the question, i.e., is the moving party entitled

to judgment as a matter of law. Federal Rules of Civil Pro-

cedure 56(b)(c) 28 United States Code Annotated (1963);

Fitzgerald v. Westland Marine Corp., 369 F.2d 499 (C.A.

N.Y. 1966); Bushman Const. Co. v. Air Force Academy

Housing, Inc., 327 F.2d 481 (C.A. Colo. 1964 ).

Nevertheless, under the allegations of the complaint,

the facts, if taken as true, would not be sufficient to over-

come a demurrer to an identical petition in the Oklahoma

State courts. Raley v. Thompson, 225 P.2d 171 (Okla. S.Ct.

1950). In this regard the allegations of the complaint and

evidence before the trial court as related to the propriety

of summary judgment in this action will be developed

further in response to the second question posed by peti-

tioner, since the same legal issues are involved therein.

B. Response to Petitioner’s Question No. 2 (Peti-

tioner’s brief, p. 3): “Whether any material issue or issues

of fact dispositive of right or duty exist in the cause after

examination of the facts discovered by depositions and

interrogatories.”

The issue of law applicable in this case involves the

sufficiency of evidence under Oklahoma law, to create a

jury issue of negligence where an automobile collides with

a train which has occupied a railroad crossing prior to the

collision. The Supreme Court of Oklahoma has considered

this question in at least nine separate decisions. The de-

cisions are: Oklahoma City-Ada-Atoka Railway v. Nickels,

343 P.2d 1094 (Okla. 1959); Kansas, Oklahoma & Gulf Rail-

way Co. v. Painter, 333 P.2d 547 (Okla. 1958); Cain v. St.

Louis-San Francisco Railroad Co., 293 P.2d 355 (Okla. 1956);

Atchison, Topeka and S.F. Ry. Co. v. Templar, 230 P.2d 907

_ os

(Okla. 1951); Raley v. Thompson, 225 P.2d 171 (Okla. 1950);

Fleming v. Loch, 195 P.2d 942 (Okla. 1948); Thompson v.

Carter, 137 P.2d 956 (Okla. 1943); Lowden v. Bowles, 105

P.2d 1061 (Okla. 1940); and Kurn v. Jones, 101 P.2d 242

(Okla. 1940). The rule was recognized and followed by the

Tenth Circuit Court of Appeals in Holt v. Thompson, 115

F.2d 1013 (10th C.C.A. 1940).

The general rule applicable in cases of this nature is

expressed in Oklahoma City-Ada-Atoka Ry. Co. v. Nickels,

supra, in Syllabus 2 by the Court as:

“Ordinarily, the presence of a train or railway cars

on a crossing, whether moving or stationary, is suffi-

cient notice to a driver of a vehicle on the highway of

such obstruction and, in the absence of unusual circum-

stances, the operating railway company is not under

any duty to provide any other notice or warning.”

The evidence in this case is not, under Oklahoma law,

sufficient to create a jury issue of negligence on the part of

respondent. In its opinion, the Tenth Circuit Court of Ap-

peals (Appendix “B” to Petitioner’s brief) views the facts

most favorable to petitioner. The issues were examined in

light of Oklahoma case law (above cited) and in the court's

opinion affirming the Motion for Summary Judgment the

Circuit Court held:

“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. * * * ”

as

The Circuit Court, in its opinion, following Oklahoma

case law, recognized that none of the circumstances sur-

rounding the accident in question were, as a matter of law,

“unusual circumstances” within the meaning of the rule.

The train itself was sufficient notice and warning. No addi-

tional warning on the part of the railway company was

required.

In Kurn v. Jones, supra, plaintiff drove his vehicle into

a flat car, coupled between two box cars. The flat car was

stopped over the crossing. Defendant gave no warning of

the presence of the car. Plaintiff did not see the flat car until

he was six or seven feet from it. Negligence complained of

by plaintiff included failure to provide a signal or flagman;

negligently allowing a flat car to stand on a highway with a

box car on either side when the tracks were on an incline,

which would lead a motorist to believe the box cars were

cut, leaving a passageway for traffic. The Oklahoma Su-

preme Court held there was no evidence of negligence on

the part of the railroad company. The facts in Kurn, supra,

are substantially the same as in this case.

In considering Kurn, supra, and the rule announced

and followed in Oklahoma, it is noted petitioner says the

case of Chicago, Rock Island & Pac. R. R. Co., a corporation,

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

Bar Journal (1971) is factually similar. In this regard peti-

tioner says in her brief that the case is not the law in Okla-

homa. Not only is the case not the law in Oklahoma, but

by statute, no opinion of the Court of Appeals is binding,

or shall be cited as precedent unless approved by a major-

ity of Justices of the Oklahoma Supreme Court, for publi-

cation in the official reporter. Title 20 O.S. § 30.5 (1970).

itil

The Melot decision was not so published. It is not an an-

nouncement of Oklahoma law.

Nevertheless, we would ask that this Court examine

the opinion in Kurn in relation to the opinion of the Okla-

homa Court of Appeals as quoted m petitioner’s brief at

page 26. The principle as found in Kurn, supra, pages 243,

244, without any omissions, is as follows:

“The burden in such case is upon plaintiff to estab-

lish a set of circumstances that would warrant the

jury’s consideration of the question of reasonable care

on the part of the trainmen. If the court is of the opin-

ion that reasonable men might differ as to whether the

trainmen in the exercise of reasonable care might have

anticipated the accident, then the jury should be al-

lowed to decide the questions of primary negligence

and of proximate cause.

“The above rule applies only in those jurisdictions

where statutes regulate neither the railroad nor the

motorist in such cases. In the instant case the defend-

ant was within its legal rights in blocking the highway

with the freight car. The presence of the train standing

on the track did not constitute negligence. The Guthrie

case, above, recognizes that rule. 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 m 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.

Martin v. McLain, 184 Okl. 418, 87 P.2d 1075.

a ee

“But we have a statute governing a motorist’s duties

while driving on a highway. Sec. 14, ch. 113, S.L. 1933,

47 Okl. St.Ann. § 92. It should be considered and ap-

_ plied to the question of primary negligence in cases of

this character, not merely as an element of contribu-

tory negligence im its violation by the motorist but as a

circumstance in the state of facts from which to deter-

mine the question of the degree of care and caution

demanded of the trainmen with reference to warning

the traveling public of the presence of the freight cars.

* * *” (Emphasis supplied.)

The Court went on to say the law makes no distinction

between flat cars and box cars. Plaintiff had no legal right

to assume the road was clear. The railroad had a legal right

to block the highway.

There is no duty under Oklahoma law, Kurn, supra,

for the railroad to anticipate a car being operated after

dark, properly equipped with lights and operating at a rea-

sonable speed would collide with a train legally occupying

the crossing. Both the District Court and the Tenth Circuit

Court of Appeals recognize the rule in Oklahoma, and

properly applied it in this case.

Petitioner contends Missouri-Kansas-Texas R. Co. v.

Castor, 410 P.2d 67 (Okla. 1965), has modified the case of

Raley v. Thompson, supra. The Castor case did not involve

nor discuss the rule of law applied in cases where the train

has occupied the crossing.

In her brief, petitioner cites the companion cases of

Missouri-Kansas-Texas R. Co. v. Hayes, 445 P.2d 249 and

445 P.2d 254 (Okla. 1960). The rule of law announced

therein is quoted at page 23 of petitioner’s brief. These

<atline

cases were decided after Castor, supra, and recognize the

same rule applied by the Tenth Circuit Court of Appeals

in this case. The Hayes case, supra, recognized an excep-

tion to the rule that the train is not notice. The Court noted

that the rule may not apply when the train and car arrive

at the crossing almost simultaneously. Clearly, Castor,

supra, has not changed the law in Oklahoma in such cases.

It is undisputed in this case that the train had been stopped

upon the crossing a minimum of twenty to forty seconds

prior to the collision. There was no simultaneous arrival.

The train was sufficient notice as a matter of law.

The case of Smoot v. Chicago, R. I. & P. Ry. Co., 378

F.2d 879 (10 C.C.A.) dealt with facts similar to the Hayes

cases, supra. In its opinion the Tenth Circuit noted the rule

in Smoot, supra, was clearly distinguishable.

Petitioner, at page 24 of her brief, says that it is sig-

nificant in the Hayes case, supra, that the same defense

here asserted was rejected by the Oklahoma Supreme

Court. Factually, the cases are obviously distinguishable

as there was no simultaneous or near simultaneous entry

of the train and automobile onto the crossing. Petitioner

goes on to say that the Court, in Hayes, supra, rejected the

argument, citmg Atchison, Topeka and S. F. Ry. Co. v.

Templar, supra. In this regard, petitioner says that Templar,

supra, held that the fact the train was already upon the

crossing when the automobile hit it did not relieve the

defendant railroad from its duty to warn the automobile

driver of the approaching train. An examination of the

opinion of the Oklahoma Supreme Court in Hayes, supra,

would indicate that petitioner’s contention is unfounded.

Further, Templar, supra, involved an automobile-train ac-

tien.

cident which occurred after dark, where the automobile

struck the fifteenth or sixteenth car of the train. The night

was cloudy and dark at the time of the accident. There were

background lights and an advertising sign which plaintiff

claimed created a deceptive condition. Further, there was a

wig-wag protection device which was concealed from the

driver’s view by box cars located upon the crossing. Plain-

tiff further contended that the deceased was ignorant of

the crossing and therefore the train was not noticed. The

Oklahoma Supreme Court held that if ignorance of the ex-

istence of the crossing created an exception to the rule, that

the train itself was notice, the railway company would at

all times and under all conditions be required to guard

against drivers approaching on the highway. Contrary to

petitioner’s assertion on page 24 of her brief that Templar,

supra, held the fact that the train was already on the cross-

ing did not relieve the railroad from its duty to warn, the

Oklahoma Supreme Court after reviewing all of the evi-

dence reversed a jury verdict for the plaintiff, with direc-

tions to render judgment for the defendant railroad. After

reviewing the “occupied crossing” cases in Oklahoma the

Court said at page 911 of its opinion in Templar: °

“a careful study of the record and authorities convinces

us that the rule contended for by defendant applies

and that negligence on the part of the defendant was

not the proximate cause of the death of deceased.”

Petitioner’s construction and assertion as to the holding in

Templar is unfounded.

Petitioner contends in her brief that the crossing sign

was improper and in violation of 66 O.S. § 124 (1963), and

that this alone was sufficient to constitute sufficient evi-

a |

dence of negligence to submit this case to the jury. In this

regard, petitioner cites Buck v. Missouri-Pac. R. Co., 252

F.Supp. 704 (U.S.D.C. W.D. Okla. 1966). Certainly the vio-

lation of a statute under Oklahoma law may constitute

evidence of negligence. However, Buck, supra, does not

reflect in the opinion that the crossing was occupied within

a sufiicient time prior to impact so that the presence of the

train itself was sufficient notice. That case did not discuss,

nor did it deal with the rule of law announced by the Okla-

homa Supreme Court in cases where the train had occupied

the crossing prior to impact.

In this regard we would respectfully direct this Court’s

attention to the case of Fleming v. Loch, supra. Fleming

involved an occupied crossing. The factual situation apply-

ing the rule of law which this respondent contends applies

in this case. The Oklahoma Supreme Court in Fleming,

supra, rejected the lack of a statutory warning sign at a

railroad crossing as evidence of primary negligence in such

cases. This lack of a sign was rejected as a matter of law.

The Oklahoma Supreme Court said, at page 943 of its

opinion:

“The construction of the sign as required by statute

or by ordinance would have added nothing to the in-

formation imparted by the presence of the train. The

proximate cause of the collision was plaintiff’s inability

to stop his car within the assured clear distance ahead

as hereinafter discussed.”

Thus, Fleming, supra, recognizes that the issue in such

cases is not whether the signs such as required by statute

are available, but rather whether the train itself is suffi-

cient notice to the public that the crossing is obstructed.

i

The case before this Court was a diversity action, re-

moved to the United States District Court for the Western

District of Oklahoma. Oklahoma substantive law applies.

The rule announced by the Oklahoma Supreme Court in

Fleming, supra, is applicable to the facts in this case and

was properly applied by the Court.

It is further well established by decisions of the Okla-

homa Supreme Court that where a vehicle collides with

the side of a train which has occupied a crossing the lack

of additional warnings in the nature of railway flashing

lights, gates, or other visible signs at the track is not evi-

dence of primary negligence. Raley v. Thompson, supra.

Dunn v. St. Louis-San Francisco Ry. Co., 370 F.2d 681

(10 C.C.A. 1967), is cited by petitioner as support for the

authority that the lack of a crossing sign or lack of a proper

crossing sign was evidence of primary negligence. Dunn,

supra, involved a malfunctioning wig-wag sign at the cross-

ing which plaintiff allegedly relied upon. The train had not

entered the crossing prior to collision. The rule applied by

the Oklahoma Supreme Court in cases where the train had

occupied a crossing prior to impact is applicable to the facts

in the case before this Court.

In Atchison, Topeka and S. F. Ry. Co. v. Templar,

supra, the Oklahoma Supreme Court said, at page 911 of

its opinion:

“Plaintiff, in insisting that the signs maintained at

the crossing by the railway were insufficient calls at-

tention to Kurn v. Campbell, 188 Okl. 636, 112 P.2d

386; Kurn v. Manley, 194 Okl. 574, 153 P.2d 623, and

other similar cases. But in none of those cases, except

Chicago, R. I. & P. Ry. Co. v. Richerson, 185 Okl. 560,

=

94 P.2d 934, was the crossing obstructed by a train at

the time the collision occurred, and in that case the

evidence was conflicting as to whether the train occu-

pied the crossing at the time the plaintiff struck it, or

whether it arrived at the crossing such a short time

before plaintiff arrived that plaintiff was unable to

stop and avoid hitting it. We are unable to see the

application of these rules to the instant case, in view

of the rule announced in the cases relied upon by de-

fendant.”

A jury verdict for plaintiff was reversed. There was no

evidence of primary negligence on the part of the defendant.

It is obvious under Oklahoma cases that petitioner’s

argument that a sign not in compliance with 66 O.S. § 124

constitutes evidence of negligence in occupied crossing

cases is unfounded. If, as in Templar, supra, the signs can-

not even be observed, or, as in Fleming, supra, the signs

do not comply with statutory requirements and there is no

duty to provide additional warnings, where a vehicle

strikes the side of a train occupyimg the crossing, it does

not matter that the alleged condition of the sign was not

in compliance with State statute. The Oklahoma Supreme

Court has so held. In such cases the train itself is sufficient

warning as a matter of law.

Other Oklahoma cases applying the rule of law appli-

cable reject petitioner’s contention, as a matter of law, that

failure to provide additional warning signs at the crossing

is evidence of primary negligence in cases of this type. Holt

v. Thompson, supra; Cain v. St. Louis-San Francisco Rail-

road Co., supra; Lowden v. Bowles, supra; Kansas, Okla-

homa & Gulf Ry. Co. v. Painter, supra.

Ss

Petitioner further contends that the flat car upon the

crossing was so obscure that reasonable men would differ

as to whether or not it constituted a suitable warning to

decedent. In Kurn v. Jones, supra, the Oklahoma Supreme

Court held that the law makes ‘no distinction between flac

cars and box cars in regard to the legal right of a railroad

company to block a crossing in the operation of its business.

Numerous Oklahoma Supreme Court decisions have dealt

with the type, color, and condition of the railroad cars in-

volved, and in each case the Oklahoma Supreme Court held

that there was no evidence of primary negligence on the

part of the defendant railroad where the train had occupied

the crossing prior to the impact. Cain v. St. Louis-San Fran-

cisco Railroad Co., supra; Thompson v. Carter, supra; Flem-

ing v. Loch, supra; Raley v. Thompson, supra; Kansas, Okla-

homa & Gulf Ry. Co. v. Painter, supra.

The Oklahoma cases hold, as the Tenth Circuit Court

of Appeals in affirmimg the trial court’s action sustaining

the Motion for Summary Judgment, that each allegation of

negligence on the part of this defendant has been rejected

as a matter of law by the Oklahoma Supreme Court as

sufficient evidence to establish primary negligence in this

case. The cases most similar, factually, to the varying claims

of negligence made by plaintiff in the case at bar are: Kurn

v. Jones, supra; Lowden v. Bowles, supra; Holt v. Thomp-

son, supra; Thompson v. Carter, supra; Fleming v. Loch,

supra; Raley v. Thompson, supra; Cain v. St. Louis-S. F.

Railroad Co., supra; and Kansas, O. d' G. Ry. Co. v. Painter.

In all of the above cases plaintiffs made the same or

varymg claims of negligence that the petitioner made in

the trial court. For the sake of brevity we do not treat each

a

allegation and combination of allegations of negligence in

the cases separately. In each of the cases above cited nu-

merous allegations of negligence were made and combina-

tions of factual patterns similar to, and identical in some

respects to the one made by petitioner in the trial court.

In each of the cases the Oklahoma Supreme Court rejected

the combination of alleged acts as evidence of primary neg-

ligence. The Tenth Circuit Court of Appeals recognized this

in its opinion. The Tenth Circuit Court of Appeals, in affirm-

ing the Motion for Summary Judgment, properly followed

Oklahoma law as it was bound to do.

C. Response to Petitioner's Question No. 3 (Petitioner’s

brief, pp. 3 and 4): “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 injuries resulting in death is guaranteed under

Article 23, Oklahoma Constitution, Sec. 7, as amended in

1950, and whether said summary judgment wrongfully de-

prives plaintiff an action for injury occasioned by want of

ordinary care of the defendant as provided in Title 76, O.S.

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

Constitution and statutes of the State of Oklahoma.”

These questions are raised by petitioner for the first

time im this appeal. Petitioner’s contention that Article 23,

Sec. 7 of the Oklahoma Constitution has been violated is

unfounded. What petitioner claims is that her right of action

for the wrongful death of her husband has been abrogated.

A “right of action” and a “cause of action” are not one and

the same. A “right of action” under Article 23, Sec. 7 of

the Oklahoma Constitution is the right to pursue a remedy

in the courts, whether the pursuit of that remedy is suc-

— =

cessful or not. Roberts v. Merrill, 386 P.2d 780 (Okla. 1963).

Petitioner has had her right of action in the courts. It has

been pursued. However, the Oklahoma Supreme Court has

held under these facts that no evidence of primary negli-

gence has been established and that petitioner does not

have a right of recovery.

Petitioner’s claim that Title 76 O.S. § 5 has been vio-

lated by the granting of a summary judgment in this case

is unsupported by any citation of authority. The question is

raised for the first time on this appeal. In this regard, peti-

tioner argues, im effect, that this case should go to a jury

for determination of negligence regardless of the applica-

tion of the law to the facts. If petitioner’s contention is

taken as true, then in every instance a case filed in the

Oklahoma courts would be submitted to a jury without

regard to the evidence in the case. There would be no need

for a demurrer to the evidence or a directed verdict, or

perhaps even for an appeal, if petitioner’s argument is taken

as true. The statute does not establish negligence in all

cases. Negligence is established only by want of the exer-

cise of ordinary care. Stills v. Mayor, 438 P.2d 477 (Okla.

1968). Under the facts of this case the Oklahoma Court has

held, as a matter of law, ordinary care has been exercised.

D. Response to Petitioner’s Question No. 4 (Peti-

tioner’s brief, p. 4): “Whether the granting of summary

judgment under the pleadings, facts and circumstances in

this case constitutes the creation of a special class of de-

fendants who are afforded preferential treatment in regard

to liability for tortious acts.”

Petitioner contends that the application of the Okla-

homa statute requiring vehicles to be driven in a manner

a

to stop within the assured clear distance ahead (47 OS.

$11-801(a) (1971) creates a special class of defendants and

affords preferential treatment to them under the applica-

tion of these statutes. It is unquestioned that the railway

company was in the exercise of its legal rights in blocking

the railroad crossing in the operation of its trains. The peti-

tioner’s decedent had no legal right to assume that the rail-

road track was clear. The application of the assured clear

distance ahead statute in Oklahoma is not, under the de-

cisions of the Oklahoma Supreme Court, so absolute as

petitioner would lead this Court to believe. That statute is

considered as a circumstance in a state of facts to determine

the degree of caution and care on the part of the railroad.

The statute is likewise considered in the same manner in

numerous other cases insofar as the duties of motorists

driving vehicles on the highway is concerned under the

statute. In applying the statute to railroad cases, the Court

in Kurn v. Jones, supra, page 244, recognized the applica-

tion of the same statute im the same manner to motorists

traveling on the highway. See also, Oklahoma City-Ada-

Atoka Ry. Co. v. Nickels, supra, p. 1099; Atchison, T. & S. F.

Ry. Co. v. Templar, supra, p. 911; Smith v. Clark, 256 Pac.

36 (Okla. 1927).

In her brief petitioner attempts to show that the pres-

ence of a railroad car on a crossing as being notice should

not be applied to all types of railroad cars. In Oklahoma

the law makes no distinction between box cars and flat cars.

Kurn v. Jones, supra. If petitioner’s contention was taken

as true, and the type of cars passing over or occupying a

crossing were to be taken into consideration in each in-

stance, there would be no train which could be arranged

a"

to relieve trainmen of warning the public at the crossing

in all instances. It is apparent that the law makes no dis-

tmction between the type of cars involved. Further, a sim-

ilar contention dealing with geographical configurations of

crossings as being a circumstance which the trainmen were

required to take into consideration has been rejected by

the Oklahoma Supreme Court. Otherwise, there would be

no railroad crossing which could be arranged in a manner

that would relieve the trainmen of warning the public at

all crossings at all times. Oklahoma has specifically rejected

any such duty. Lowden v. Bowles, supra.

E. Response to Petitioner's Question No. 5 (Peti-

tioner’s brief, p. 4): For the sake of brevity petitioner’s

Question No. 5 will not be set forth herein. In essence,

the question asked is does the statute, Title 47, O.S. §11-

201(a) (1971), requiring a vehicle to be driven within the

assured clear distance ahead, constitute an absolute defense

to an allegation of negligence against a railroad company

as a matter of law? Further, does this apply where the

facts show the vehicle in question was traveling at a speed

within the statutory limit and no facts indicate the speed

was other than reasonable under the prevailing conditions?

The basic question asked has been dealt with herein

in respondent’s response to Question No. 2 of petitioner.

It is apparent under Oklahoma law that the statute is not

an absolute defense to the allegations of negligence against

a railroad company. The statute is merely to be considered

in the circumstances to determine the duties imposed upon

the railroad company in such cases. Kurn v. Jones, supra.

In each of the cases in Oklahoma dealing with the law of

occupied crossings, which cases have been previously cited

=

in this brief, the Oklahoma Supreme Court has considered

the above statute insofar as any additional duty on the

railroad company to warn vehicles approaching the cross-

ing is concerned. Under Oklahoma law the presence of the

train is ordinarily notice in and of itself, absent unusual

circumstances. As the Tenth Circuit Court of Appeals noted

in its opinion, all of the allegations of negligence made by

the petitioner in the trial court were specifically rejected

by the Oklahoma Supreme Court as sufficient to establish

any primary negligence on the part of the railroad in this

case. As previously discussed, the acts of negligence al-

leged by petitioner in the trial court, and the various com-

binations of acts of negligence have been rejected singly

and accumulativeiy as sufficient to establish primary neg-

ligence in this case. The decisions of the Oklahoma Supreme

Court do not make the statute an absolute defense to an

action against a railroad company in occupied crossing

cases. At no place and at no time, in any of the decisions

of the Oklahoma Supreme Court dealing with the duties

imposed upon the railroad in its cases, has any such asser-

tion been made by the Court.

F. Response to Petitioner's Question No. 6 (Peti-

tioner’s brief, p. 4): “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 question to be deter-

mined by the trier of fact considering all of the circum-

stances of the case.”

Petitioner asserts at page 31 of her brief that respond-

ent successfully prevailed on the United States District

Court for the Western District of Oklahoma and the Tenth

Circuit Court of Appeals to announce plaintiff’s decedent

-

contributorily negligent as a matter of law under the above

statute. (Note: The statute discussed in petitioner’s brief

is the present legislative re-enactment of the statute dis-

cussed in the cases previously cited in this brief, applying

the rule of law in occupied crossing cases.)

An examination of the opinions of the Oklahoma Su-

preme Court in the occupied crossing cases, which rule of

law was applied by the Tenth Circuit Court of Appeals in

this case, does not involve the issue of contributory negli-

gence as a matter of law. Each case is decided on the suffi-

ciency of the evidence to make a case of primary negligence

on the part of the railroad, which should be submitted to a

jury. In each of the cases, the Oklahoma Supreme Court

held that the evidence was insufficient in that regard. At no

time, either in the trial court or in the Tenth Circuit Court

of Appeals did respondent claim petitioner’s decedent was

contributorily negligent as a matter of law. In fact, the only

time this claim has been made is by petitioner im the peti-

tion and brief on appeal to this Court. It is apparent under

the cases previously cited there is no evidence of primary

negligence as a matter of law. In its opinion, the Tenth

Circuit Court of Appeals recognized and applied the stand-

ards set forth in the decisions of the Oklahoma Supreme

Court in this case.

Under the above question presented by petitioner the

case of Gross v. Southern Ry. Co., 414 F.2d 292 (C.A. 5th

1969), and Missouri-Kansas-Texas R. Co. v. McFerrin, 291

S.W.2d 931 (Tex.Civ.App. 1956), cited in this regard, deal

with the issue of contributory negligence on the part of the

plaintiffs. The cases do not involve, nor is the rule as applied

by the Oklahoma courts in cases of this nature discussed

- =

in the opinions. The cases are inapplicable as they do not

involve the same factual pattern, application of Oklahoma

law, nor do the cases involve the same or similar duties

imposed upon the railroad company under Oklahoma law.

Petitioner says that it is more hazardous for the re-

spondent to operate its trains within the Fifth Circuit juris-

diction than within the Tenth Circuit jurisdiction under

the Gross case. It is respectfully submitted that the Fifth

Circuit determination of Georgia law is not, and cannot be

compared to a decision of the Tenth Circuit Court of Ap-

peals following Oklahoma law. In this regard, petitioner

seems to imply that the Oklahoma rule as applied by the

Tenth Circuit Court of Appeals in this case would be ap-

plied throughout the Tenth Circuit. Such comparison is

unfounded. If the Tenth Circuit Court of Appeals had the

same facts under the laws of Kansas or New Mexico, or

some other state, where the state law differed the Circuit

Court would follow the state law as the Tenth Circuit was

required to do; its decisions would not be the same in every

case.

Petitioner’s entire proposition fails to deal with the

real issue involved in this case. The issue is, under the evi-

dence presented, was there any evidence of primary negli-

gence on the part of respondent under applicable Oklahoma

law? It is unquestioned under the decisions of the Oklahoma

Supreme Court that the evidence was not sufficient in this

regard. Obviously, had the evidence been sufficient to estab-

lish primary negligence on the part of respondent, and the

evidence warranted, the issue of contributory negligence

would have been submitted to a jury. However, petitioner’s

assertion that the petitioner’s decedent was found guilty of

a

contributory negligence as a matter of law is unsupported

by anything in the record or in the decisions of the lower

courts in this matter.

G. Response to Petitioner’s Question No. 7 (Peti-

tioner’s brief, p. 5): “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 facto that said statute

was violated, thereby depriving the plaintiff of trial by

jury as to the issue of contributory negligence.”

Petitioner’s Proposition No. 7 concerns the same legal

issue presented in the preceding proposition. It has been

demonstrated throughout the brief and by the decisions of

the Tenth Circuit Court of Appeals that the question was

not one of contributory negligence of petitioner’s decedent

as a matter of law. Rather, the question is the sufficiency

of the evidence to establish any primary negligence on the

part of respondent. Petitioner’s assertion that the issue of

contributory negligence on the part of petitioner’s decedent

was imvolved in this case is unfounded. Certainly, had the

case gone to the jury the question of a violation of 47 O.S.

§ 11-801(a) (1971) would have been, or should have been

submitted to a jury to determine the contributory negli-

gence, if any, of petitioner’s decedent.

However, the statute has been considered by the Okla-

homa Supreme Court in the decisions followed by the Tenth

Circuit in its opinion only as it applies to the question of

primary negligence on the part of a railroad in such cases.

It is not the only factor considered. It is not absolutely de-

terminative, but gives rise to a set of circumstances from

which there may be a duty on the part of the railroad to

=

provide additional warnings. Oklahoma City-Ada-Atoka

Ry. Co. v. Nickels, supra, 1098-1099; Kurn v. Jones, supra,

244. It is apparent from the opinion of the Tenth Circuit

Court of Appeals affirming the decision of the trial court in

this case that the statute was not applied to the issue of

contributory negligence. The Oklahoma cases were fol-

lowed, and as the Oklahoma courts have held under these

circumstances and under the facts presented there is no

evidence of primary negligence on the part of the railway

company. The railway company was entitled to a judgment

as a matter of law.

H. Response to Petitioner’s Question No. 8 (Peti-

tioner’s brief, p. 5): “Whether the Oklahoma Supreme

Court by means of judicial legislation has granted to a

special interest group, exclusive of all other groups and

citizens, and to the prejudice of this plaintiff, a favored

status in regard to the laws of negligence of this state with-

out the benefit of constitutional or statutory authority.”

Petitioner contends that the case of Peagler v. Atlantic

Coast Lines R. Co., 107 S.E.2d 15 (S.C. 1959), should be

compared to the case before this Court. The Peagler case

was decided under the laws of South Carolina and not under

the laws of the State of Oklahoma. The facts in Peagler are

strikingly similar to those of Kurn v. Jones, supra, wherein

the Oklahoma Supreme Court under similar facts reversed

a judgment in favor of the plaintiff against the railroad.

The Oklahoma Supreme Court held there was no evidence

of primary negligence to create a jury case. The decision

in Peagler involved a claim that headlights from the auto-

mobile on the opposite side of the track created an illusion;

that such illusion misled the plaintiff and contributed to

his striking the flat car upon the railroad crossing. There

is no evidence in the case before this Court that any such

illusion was created by headlights on the opposite side of

the track. In any event, Oklahoma has held, as a matter of

law, that such facts do not create any unusual conditions

which give rise to providing additional warnings at the

crossing. Lowden v. Bowles, supra, p. 1063. In this regard,

petitioner makes the assertion in its eighth question pre-

sented for review for the first time in this appeal.

It is apparent under the common law and statutory

provisions of the State of Oklahoma that all railroad cor-

porations and all travelers on the highway are treated

equally with regard to cases involving this factual pattern.

The Court has held that absent unusual circumstances there

is no evidence of primary negligence on the part of the rail-

way company where the railroad train has occupied the

crossing prior to the collision. The train itself is notice—as

a matter of law. If unusual circumstances exist, then a jury

issue as to the negligence of the railway company is created.

Under the facts in this case, the Oklahoma Supreme Court

has rejected all allegations of negligence made by the peti-

tioner in the trial court as constituting evidence of primary

negligence.

Petitioner’s assertion that the railroads are treated dif-

ferently in Oklahoma than any other class of citizens is an

unfair comparison, and obviously unfounded. Petitioner

contends that since she was unable to prove any evidence

of primary negligence she should be entitled to a jury deter-

mination of negligence on the part of the respondent, even

though other citizens are not so entitled. Different duties

are imposed upon different persons, depending upon cir-

—26—

cumstances involved. Petitioner would seem to say that

every case, regardless of the sufficiency of the evidence,

should be submitted to a jury. Would petitioner contend

that a trespasser was owed the same duty as a business

invitee, under Oklahoma law? That is not the case, and

further, any such comparison is unfair and unfounded.

Different duties are imposed upon different persons depend-

ing upon the nature of the activity, statutory provisions

and common law.

The substantive law of Oklahoma was followed by the

United States District Court for the Western District of

Oklahoma and the Tenth Circuit Court of Appeals. There

is no federal common law. The federal courts are not con-

cerned with the declaration of state law, either by the

Legislature or by its highest court. Such is a question for

the state courts. Erie R.R. Co. v. Tompkins, 58 S.Ct. 817,

304 U.S. 64, 82 L-Ed. 1188 (1938).

Under Oklahoma law the evidence in this case, viewed

most favorably for petitioner, does not create a jury issue

of negligence. Respondent was entitled to a judgment as a

matter of law.

SUMMARY

The substantive rule of law applicable to the facts in

the case before this Court provides that ordinarily the

presence of a railroad train or cars upon a crossing is suffi-

cient notice to a motorist that the crossing is obstructed

and, absent unusual circumstances, the railroad is not under

any duty to provide additional notice or warnings. Okla-

homa City-Ada-Atoka Railway Co. v. Nickels, supra (and

—27—

cases therein cited). A partial basis for this rule of law is

that by statute in Oklahoma operators of motor vehicles on

the highway are required to operate the vehicles in a man-

ner which will allow them to stop within the assured clear

distance ahead. The statutory provision is considered and

applied to the facts in each case as to the question of pri-

mary negligence, if any, on the part of the railroad. Kurn

v. Jones, supra.

The action before this Court is a diversity action and

the substantive law of Oklahoma is applicable. The Su-

preme Court of Oklahoma has not changed the rule of law

applied to occupied crossing cases. In fact, the Court has

recognized that while it is unfortunate that burdens may

fall upon people in such cases, it is impossible to pronounce

rules of law which would change the results in such cases.

Cain v. St. Louis-San Francisco Railroad Co., supra.

Petitioner, in effect, asks this Court to review the evi-

dence in the case. On appeal to the Tenth Circuit Court of

Appeals the only questions posed by petitioner were the

sufficiency of the complaint to state a claim for relief, and

whether, under the evidence, summary judgment was

proper. All other questions presented are raised by peti-

tioner for the first time in this appeal. Nevertheless, it is

respectfully submitted that said questions in no way make

the decisions of the lower courts in this case improper.

The evidence has been considered, together with the

Oklahoma case law. Petitioner does not contend that all the

evidence was not before the trial court prior to the ruling

on respondent's motion for summary judgment. Neither

does petitioner contend that the crossing was not occupied

_— on

by the train prior to the accident. All discovery was com-

pleted. The United States District Court for the Western

District of Oklahoma and the Tenth Circuit Court of Ap-

peals have both reviewed the evidence and considered the

effect of the Oklahoma Supreme Court decisions. Both

courts found, under the evidence and applicable law, that

no unusual conditions existed to require respondent to pro-

vide any additional warnings of the presence of the train on

the crossing. The train itself was sufficient notice as a mat-

ter of law. There was no evidence of primary negligence

on the part of respondent as a matter of law. Respondent

was entitled to a judgment as a matter of law.

Throughout her brief, petitioner asserts that respond-

ent contended, and the lower courts held that petitioner’s

decedent was contributorily negligent as a matter of law.

Such statement is without merit. No such claim was ever

made by respondent in the motion for summary judgment

or in the briefs on appeal. The lower courts did not make

any such holding. Following Oklahoma substantive law,

the courts found respondent was entitled to a judgment as

a matter of law. There was no inference from the evidence

of any negligence on the part of the railway company under

applicable Oklahoma law.

In effect, petitioner asks this Court to review the evi-

dence in this case and change the rule of law announced by

the Oklahoma Supreme Court as being applicable in such

cases. The Oklahoma Supreme Court, as clearly demon-

strated by Oklahoma City-Ada-Atoka Ry. Co. v. Nickels,

supra (and cases cited therein), has considered the effect

of darkness at the crossing; type, color and condition of

railway cars involved; lack of visible warning signs; ab-

=.

sence of flagmen; varying geographical configurations; and

the effect of lights at or around the crossing. In each case,

considering various combinations of the above conditions,

together with other conditions and claims of negligence

made by plaintiffs, the Oklahoma Supreme Court has found

no evidence of primary negligence where a railroad train

had occupied the crossing prior to impact. The Supreme

Court of Oklahoma has rejected, as a matter of law, all

facts, evidence and allegations of negligence made by peti-

tioner in this case as sufficient to create any jury issue of

primary negligence on the part of respondent. If all the

facts in this case were to be submitted to a jury it would

be the duty of the trial court to direct a verdict for the

respondent, in view of the substantive laws of Oklahoma.

Both the United States District Court for the Western

District of Oklahoma and the Tenth Circuit Court of Ap-

peals have reviewed the evidence and properly followed

and applied Oklahoma substantive law. Under the circum-

stances, no special reason exists for granting the writ of

certiorari. The review would be of no importance or sig-

nificance to any other case from a factual standpoint. Fur-

ther, any such review would only delve into and weigh

the evidence and question the substantive laws of the State

of Oklahoma.

CONCLUSION

The evidence in this case has been reviewed by two

federal courts, which courts are familiar with and apply

Oklahoma law in the daily course of their activities. Each

court found that petitioner failed to establish any evidence

from which an inference of primary negligence on the part

-_ =

of respondent could be made. Respondent was entitled to,

and properly given, summary judgment in this case. Re-

spondent was entitled to a judgment as a matter of law.

It is respectfully submitted that the writ of certiorari

prayed for by petitioner be denied.

H. D. Binns, Jr., of

RAINEY, WALLACE, Ross & CooPER

735 First Nationa! Center West

Oklahoma City, Oklahoma 73102

[405] 235-1356

Attorneys for Respondent

July, 1975

CERTIFICATE OF SERVICE

Service of the foregoing Response to Petition for Writ

of Certiorari has been made this. day of July, 1975,

by mailing three copies hereof to Hiram Keith Myers, Jr.,

of the firm of Myers & Cummins, 125 N. 2nd Street, Hollis,

Oklahoma 73550.

Counsel for Respondent