Opinion
No. 30633.
January 26, 1943. Rehearing Denied March 23, 1943.
(Syllabus.)
1. RAILROADS — Permitting cars standing on sidetrack to obstruct view at crossing is not negligence but merely imposes greater duty of care both on railroad and travelers.
If a railroad company, in the ordinary conduct of its business, leaves freight cars standing upon a sidetrack at or near a public crossing, so as to partially obstruct the view of persons passing over such crossing, such fact of itself does not render the company liable for accidents occurring at the crossing, but merely imposes a duty of greater care both upon the company and upon those using the highway.
2. NEGLIGENCE — Question for jury.
In an action for damages for death, where a given state of facts is such that reasonable men may differ upon the question as to whether proper care was exercised and whether there was negligence, the determination of the fact is for the jury.
3. APPEAL AND ERROR — Sufficiency of conflicting evidence to support verdict.
Where, in an action at law, the evidence is conflicting this court will not review the evidence to ascertain where the weight of the evidence lies, but if there is evidence reasonably tending to support the verdict, it will not be set aside.
4. RAILROADS — DEATH — Action for wrongful death occurring in crossing accident — Sufficiency of petition and evidence and instructions.
Record examined, and held, that the evidence, though conflicting, was sufficient to submit the cause to the jury; that plaintiff's petition was not confined to one alleged act of negligence; that no error occurred in giving or refusing instructions or in overruling defendant's demurrer to evidence.
Appeal from District Court, Rogers County; N.B. Johnson, Judge.
Action for damages for wrongful death by J.E. Cooper, administrator of the estate of Joe Sellers, deceased, against Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, Bankrupt. Judgment for plaintiff, and defendant appeals. Affirmed.
Thomas B. Pryor, W.L. Curtis, and Thomas Harper, all of Ft. Smith, Ark., for plaintiff in error.
Kight Kight and W.M. Hall, all of Claremore, and R.A. Wilkerson and Ben L. Murdock, both of Pryor, for defendant in error.
We consider this as a companion case to No. 30653, Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company, Bankrupt, v. J.E. Cooper, Administrator of the Estate of Lloyd L. Bond, Deceased, this day decided, 192 Okla. 237, 135 P.2d 49.
The plaintiff's decedent here was in the same car and lost his life in the same collision. The parties here were represented by the same attorneys, and the record is sufficiently similar to conclude that the decision of that case is controlling here. What we there said is wholly applicable here.
Judgment affirmed.
CORN, C.J., and RILEY, OSBORN, HURST, DAVISON, and ARNOLD, JJ., concur. BAYLESS, J., absent.
GIBSON, V.C.J., dissents for the reasons stated in the dissenting opinion in the companion case.