Brodsky v. Atchison, Topeka & Santa Fe Railway Co. , 1961 Okla. LEXIS 507 ( 1961 )

JACKSON, Justice.

Marion Brodsky and his wife were injured as a result of an accident at a railroad • crossing on a heavily travelled Tulsa street. 'They filed their separate action for damages against the defendant, Atchison, Topeka and Santa Fe Railway Company, and in the trial court defendant’s demurrers to the petitions were sustained upon the ground there were no sufficient allegations of proximate cause. Plaintiffs have appealed. Since in all pertinent details the petitions were the same, the cases are argued and considered together here.

When the sufficiency of a petition is challenged by a demurrer thereto, such petition must be liberally construed in favor of the plaintiff, and all facts well pleaded together with all inferences which may be reasonably drawn therefrom must be taken as admitted to be true for the purpose of the demurrer. Crews v. Garber, 188 Okl. 570, 111 P.2d 1080.

Considered in the light of the above rule, the petitions here allege that Brodsky and his wife were driving west in a line of traffic, on a heavily travelled Tulsa street, approaching the railroad crossing, when the switch engine of defendant, approaching from the north, emerged suddenly from behind an earthen embankment on the right of way of defendant which obstructed the view of plaintiff Brodsky and the drivers behind him. The intersection was not guarded by automatic signalling devices, nor by the statutory “cross-bar” warning signs. No whistle or bell was sounded as required by statute.

When the switch engine appeared suddenly in front of him from its concealed position, Brodsky “made a sudden emergency stop”. He was successful in bringing his automobile to a stop before it struck the switch engine, but his automobile was “immediately” struck from the rear by one driven by Blankenship, whose car was in turn struck from the rear by one driven by Allen. Blankenship and Allen were not defendants in the cases.

On appeal plaintiffs argue four propositions. Since the fourth one is decisive here, we will not consider the first three.

The fourth proposition is that “The proximate cause of the injuries to the plaintiffs were the acts of the defendant railroad which set into motion the chain of circumstances leading to such injuries”. We construe this as an argument that the petitions here contained allegations sufficient to show proximate cause.

The court’s finding that there was no sufficient showing of causal connection between defendant’s negligence and plaintiffs’ injuries was apparently based upon a conclusion that defendant only created a “condition” making the accident possible, and that a subsequent intervening force superseded defendant’s negligence and was itself the proximate cause of the accident. However, a subsequent intervening force is not always sufficient to relieve defendant from liability for his primary negligence. See Oklahoma Natural Gas Company v. Courtney, 182 Okl. 582, 79 P.2d 235, 236, wherein this court held:

“Where there is an intervening, responsible agency, which directly produces the injury, as in this case, the question as to whether the original negligence is to be regarded as the proximate cause of the injury, or only as a condition, or remote cause, is to be determined by ascertaining whether the agency which intervened was of such a character, and the circumstances under which it occurred were such, that it might have been reasonably expected that such agency or a similar one would intervene in such a way as to be likely to produce an injury similar to the one actually caused [by it]. If, under the circumstances, the intervention of such an agency in the manner stated might reasonably have been expected in the usual course of events, and according to common experience, then the chain of causation, extending from the original wrongful act to the injury, is not broken by the independent, intervening agency, and the original wrongful act will be treated as the proximate cause.”

Pursuant to the above rule, it was error to sustain the demurrers to the petitions here. Common experience indicates that' in the usual course of events, when a switch engine emerges suddenly and without warning from a concealed position and enters a railroad crossing unprotected by warning signs or signals, on a busy metropolitan street, a chain of “rear-end” accidents such as those set out in the petitions here is likely to occur. The circumstance that there was no physical contact between the switch engine and plaintiffs’ automobile is of no consequence — under the rule above stated, defendant’s negligence is still the proximate cause, or a concurring cause.

■ A substantially similar situation was considered by this court in Yellow Transit Freight Lines v. Allred, Old., 302 P.2d 985. In that case, plaintiff was driving east toward a narrow bridge, and defendant’s truck was approaching the bridge from the east, coming toward plaintiff. As defendant’s truck entered the bridge, it drove to the left of the center line; plaintiff therefore stopped her car to let the truck pass, and it was struck from the rear by another truck. Her car was shoved forward and against defendant’s truck as it continued in a westerly direction. Defendant argued that the efficient cause of the accident was not defendant’s negligence, but was the force applied by the second truck which struck plaintiff’s car from the rear. In rejecting such argument, this court cited a rule from Wilcox Oil Co. v. Bradberry, 208 Okl. 546, 257 P.2d 1096, substantially similar to the one quoted above from Oklahoma Natural Gas Co. v. Courtney.

In support of its argument that no proximate cause is shown under the pleadings concerned, defendant cites language from the body of the opinion in Norman v. Scrivner-Stevens Co., 201 Okl. 218, 204 P.2d 277. However, the language quoted by defendant includes the requirement that the “subsequent independent” agency, to relieve defendant of liability for his primary negligence, must have been “unforeseeable”. In the case before us, the subsequent intervening force should have been anticipated by the defendant as likely to follow the original negligence, according to common experience. Norman v. Scrivner-Stevens Co., supra, is therefore not applicable.

Defendant next cites Oklahoma Power & Water Co. v. Howell, 201 Okl. 615, 207 P.2d 937. In that case, defendant’s trucks were blocking the highway when they were struck by plaintiff’s truck. However, it was shown that plaintiff’s driver observed the blocked highway early enough to have stopped easily (which is not the case here) but could not do so because of the defective condition of his own truck. The case is therefore not in point. In the instant case, if plaintiff had made a normal stop under normal conditions then the demurrer to the petitions might have been well taken. But such is not the case; he was required by the negligence of defendant to make an emergency stop, as were the drivers behind him, under conditions that the defendant should have anticipated.

Defendant also cites Booth v. Warehouse Market, Okl., 286 P.2d 721; Safeway Stores, Inc. v. Musfelt, Okl., 349 P.2d 756; and City of Okmulgee v. Hemphill, 183 Okl. 450, 83 P.2d 189. These were all cases in which a subsequent independent act of an intervening agency operated to relieve defendants of liability. In all of them, the defendant’s negligence was shown to have no connection whatsoever with the manner of operation of the automobile driven by the person whose intervening negligence caused the injury. The same cannot be said in the instant case. Here, plaintiffs, and the drivers of the two automobiles behind them, all had to make emergency stops due to the negligence of defendant. The emergency stops made by all three drivers cannot be said to be independent of defendant’s negligence; to the contrary, they were the direct result of it, and would not have been made had not the switch engine appeared suddenly and without warning at the railroad crossing.

Pursuant to the rule quoted herein from Oklahoma Natural Gas Company v. Courtney, 182 Okl. 582, 79 P.2d 235, we hold that defendant was not relieved of liability for its primary negligence by a subsequent, independent intervening force which it should have anticipated as likely to follow in the usual course of events. It follows that the chain of causation was not broken, and defendant’s negligence was the proximate cause of plaintiffs’ injuries.

We hold that insofar as proximate cause is concerned, the petitions here state causes of action. Since they are not challenged in any other particular, the demurrers thereto should have been overruled. City of Tulsa v. Wilkin, 202 Okl. 431, 214 P.2d 944.

The judgment of the trial court is reversed with directions to vacate its order sustaining the demurrers and to reinstate the petitions.

BLACKBIRD, V. C. J., and HALLEY, IRWIN and BERRY, JJ., concur. WILLIAMS, C. J., concurs in result. DAVISON and JOHNSON, JJ., dissent.