The parties will be referred to hereafter as they appeared in the trial court.
Plaintiff filed his petition in the district court of Marshall county, Oklahoma; the pertinent part thereof being paragraphs two and three which read as follows:
"That on or about the 22nd day of February, 1948, plaintiff was driving his automobile, ... at about 2:00 a.m. in an easterly direction down the main street of Madill, Oklahoma, and the same collided with a freight train owned and operated by defendant, which train was running in a northerly direction. As a result of said collision, the automobile of plaintiff was completely demolished; ... Plaintiff was severely injured....
"At the intersection of Main Street and the railroad tracks of defendant, its right of way is approximately 650 feet wide; there are seven tracks at said point. The railroad bed is on a grade about three feet higher than the road bed on the east and west side thereof. There was and is an unusually large amount of traffic that normally goes over said point of intersection. That practically all the traffic from the west side of Madill, Oklahoma to the east side must pass over said intersection; that the traffic of a road from Madill, Oklahoma to the Cumberland Oil Field intersects with State Highway 199 near said point of intersection. That an unusual and large amount of traffic passes over said point of intersection. In addition thereto, the defendant has and maintains and had at the time of the said collision a large
To this petition the defendant filed a general demurrer which was sustained, and the plaintiff elected to stand on his petition. The trial court then dismissed plaintiff's cause of action with prejudice, resulting in this appeal.
For the purpose of testing the sufficiency of a petition, a demurrer thereto admits the truth of all facts well pleaded together with all inferences which may be drawn therefrom, and the petition is to be liberally construed in favor of the plaintiff. Crews et al. v. Garber, 188 Okla. 570, 111 P.2d 1080. But if the plaintiff was not entitled as a matter of law to recover under facts alleged in petition, demurrer thereto was properly sustained. Alfe v. New York Life Ins. Co. et al., 180 Okla. 87, 67 P.2d 947.
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 highway 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 warning. Thompson, Trustee, v. Carter, 192 Okla. 579, 137 P.2d 956; Kurn v. Jones, 187 Okla. 94, 101 P.2d 242; Lowden et al. v. Bowles et ux., 188 Okla. 35, 105 P.2d 1061; Wm. A. Smith Const. Co., Inc., v. Brumley (C. 10th Cir.) 88 Fed.2d 803; Holt v. Thompson, 115 Fed.2d 1013; Yardley v. Rutland R. Co., 103 Vt. 182, 153 Atl. 195.
It is correctly asserted by plaintiff that the only question involved in this appeal is whether the petition in this case alleges unusual circumstances which would require the defendant to give warning or notice to plaintiff. We
ARNOLD, V.C.J., and WELCH, CORN, GIBSON, LUTTRELL, HALLEY, and O'NEAL, JJ., concur.