The law announced in the syllabus is contrary to our holding in Frederick Cotton Oil Mfg. Co. v. Clay, 50 Okla. 123,150 P. 451; Chicago, R.I. P. Ry. Co. v. Brooks, 57 Okla. 163,156 P. 362; Sanders v. Chicago, R.I. P. Ry. Co.,66 Okla. 313, 169 P. 891; Whitehead Coal Mining Co. v. Winton,107 Okla. 99, 230 P. 509; White v. McGee, 157 Okla. 204,11 P.2d 924; Oklahoma City v. Richardson, 180 Okla. 314, 69 P.2d 334; Oklahoma Gas Electric Co. v. Spiva, 183 Okla. 253,80 P.2d 941.
The statute under which this action was brought was taken by us verbatim from the State of Kansas. The Supreme Court of that state has repeatedly and consistently held, as in City of Eureka v. Merrifield, 53 Kan. 794, 37 P. 113, that the action was statutory, the right of the plaintiff to maintain the action was conditional, and that the plaintiff, by pleading and proof, must bring himself "within the prescribed requirements *Page 137 necessary to confer the right of action."
In other states having statutes similar to ours the decisions are uniform and announce the same rule we have followed until now.
I see no good reason for departing from a rule so firmly established.
The sole ground of negligence alleged in plaintiff's petition is:
"That the engineer and fireman of said defendant's train by the use of ordinary care could have seen the deceased approaching said highway crossing, but that said engineer and fireman operating said defendant's train negligently and carelessly failed to give any warning of the approach of said train to said highway crossing and that by reason of said negligence and carelessness the said train was caused to collide with the automobile operated by the deceased."
The majority opinion states:
"There was conflicting evidence as to whether proper warning signal was given. The facts determined by the jury from the evidence formed the basis of the verdict. We should not reverse."
But I can find no conflict in the evidence.
Plaintiff introduced four witnesses who were asked whether warning signals were given by the defendant. The first witness testified that he heard the train whistle about 65 or 70 yards south of the crossing. The next witness testified that he heard the train whistle around 60 or 70 yards" from the crossing. The third witness was a girl about 11 years old. She testified that she heard the whistle about two or three minutes before the collision occurred. And that if it whistled before that she did not hear it. The fourth and last witness was not asked if he heard the train whistle for the crossing. He was asked "Did it sound any blast or blasts of the whistle, as it went through Clarita?" And he answered "Not that I heard." It was not shown that he was paying attention to the train or that he was in a position to hear the train's whistle, if it were sounded. His evidence was negative in character and did not constitute evidence that no warning was sounded. Missouri, K. T. Ry. Co. v. Flowers, 187 Okla. 158, 101 P.2d 816.
Six witnesses testified for defendant that the whistles were sounded.
Finding no evidence supporting the sole ground of negligence alleged by plaintiff, I think the judgment should be reversed.
I therefore respectfully dissent.