(Syllabus.)
Appeal and Error — Trial — Directed Verdict for Defendant Held Error.
Action of the lower court in taking the case from the consideration of the jury is reversed, with directions to the lower court to award a new trial.
KORNEGAY, J.
This was an accident case originating near the city of Tulsa, Okla., where the highway crossed the track of the defendant railroad corporation.
The trial court took the case from the jury. There was some evidence of a failure to give warning of the approach of the train that was sufficient to have taken it to the jury on the subject of primary negligence.
The case should have been submitted to the jury under proper instructions. The judgment of the trial court is accordingly reversed, with directions to grant a new trial.
CLARK, V. C. J., and CULLISON, ANDREWS, and McNEILL, JJ., concur. RILEY, J., dissents. LESTER, C. J., not participating. HEFNER and SWINDALL, JJ., absent.