*1 September Argued 1966, 20, reversed with June instructions rehearing petition 17,1967 denied October v. SPOKANE, PORTLAND Respondent, BROWN, AND COMPANY et al, SEATTLE RAILWAY
Appellants.
William Gray, Ben T. respondent. him the brief was With *3 Portland. Presiding and Sloan, Good- Justice,
Before Perry, Justices. Lusk and Hammond, Holman, win, Denecice, C. J. PERRY, riding a while Brown, V.
The Viola by husband, passenger driven her an automobile in injured a diesel automobile and when the Spokane, and operated Portland the defendant Railway Company the inter- near collided Seattle 14th and northwest Front avenue northwest section of city of Portland. in the avenue damages the circuit an action for filed Plaintiff county; was tried to the cause for Multnomah court defendants. jury for the was returned and a verdict of aside the verdict on basis trial court set jurors because he made of one of the misconduct on northwest to the intersection unauthorized visits From the accident occurred. avenue where Front ap- granting a the defendants have new trial, order pealed. appeal contend on this that the trial
Defendants failing to direct a verdict in their favor. court erred requires assignment an examination of error and This light most of the facts in favorable consideration plaintiff, although material to the there is little dis pute in the evidence. Front in the area where the avenue,
Northwest city running is a four-lane street occurred, accident northwesterly southeasterly in a direction. Two northwesterly lanes are for vehicular traffic traffic traveling are for use two of vehicles south- easterly. will For the sake of convenience we here- running after refer to this street as north and south. entirely The area where accident occurred is There are numerous railroad industrial. tracks on including west side the east and street, west- railway, bound mainline tracks of defendant spur tracks on the east side numerous street by. to serve the docks on the river Willamette close The west side of the track of the defendant enters approximately onto Front street 190 feet north of the edge north 14th northwest continues avenue, across diagonally Front avenue to the southeast, distance approximately and a short distance feet, further spur southeast connects with numerous tracks of the railway. lighted defendant Front Northwest avenue *4 mercury night by vapor lights, on the east side street not on the west side. A few feet to the north but of northwest Front avenue and north- intersection provided pedestrian a
west 14th avenue there is cross- yellow flashing ing light with an intermittent caution located in the center northwest Front avenue and light he caused to turn red when a button pushed, stopping all motor vehicle traffic. early morning of March The was one which 14,1961, typical found the weather for conditions Portland at year. raining misting. that time of had It been pavement wet. was Plaintiff’s husband was driv- ing speed north on Front a automobile avenue at per wipers of 25 to 35 miles hour. The windshield headlights ear were in use and the were in a his on position. dim Plaintiff was in the front seat of the car with her husband and a merchant seaman. Scottish occupied The rear another merchant seat was sea- man. The Browns had met both men earlier a local nightclub. an ex-merchant him- Mr. seaman Brown, had offered to take the two men back to their self, ship they agreed in turn had to take the Browns ship morning, possible. aboard the tour that if At same time that the Brown automobile was traveling north on Front defendant’s avenue, engine moving southeasterly switch forward in previously track at a direction on the described per engine of four to five hour. The was fur- miles yellow oscillating light, ground light, nished with a guard type headlight, engine light, number scotch along tape reflector front end and each side, its equipment All twelve-inch bell. of this operation. functional and in In two switch- addition, carrying lighted riding outside of lanterns were men platform engine. Operating on the front cab a fireman Hubbell, was defendant Richard experience. employees getting engineer These who was *5 they railway observed first stated of defendant the 400 to 750 feet from it was car when Browns’ the yield, Assuming Hubbell engine. the car would engine to lever slow placed the brake hand on his stop. intending As the automobile to not but down, began engine, switchmen the two to the closer moved swinging vigorously lanterns from side to side their warning oncoming give attempt to the added in an apparent that the automobile became it vehicle. When fully applied stop, going the brakes, Hubbell slowly angle engine an continued to move at but the northbound lane of into second feet the four to five automobile struck it. the Brown Front avenue right- driving in the outside or he was testified Brown northbound lane which lane. The hand northbound traveling width. 21 feet in Brown engine just noticed the testified that she Plaintiff warning. Mr. Brown and shouted the collision before immediately impact engine before the saw the also applied the brakes. no there were obstruc- time of the accident, At the looking on Front avenue to the north to the view tions visibility impact, point was characterized but the very poor by plaintiff’s because witnesses the poor lighting Despite and the the and rain. darkness noticed the Mr. Brown conditions, inclement weather light, previously while flashing pedestrian mentioned, was also from it. He distance an undisclosed still numerous there were area and knew with the familiar pas- crossings. one MacDonald, Donald track engine light sengers the saw the front seat, in the yards was 200 Browns’ ear estimate, his when, lights away from it. He also noticed from swinging before “minutes” lanterns some switchmen’s noticing engine. any no evidence that
There is there were natural impair or artificial barriers which would the vision any of a driver at distance before the would any enter the nor is there evidence of street, number these tracks are used or of times switching operation at is conducted which across other than that on this occasion it was street, this proceeding approximately per five miles hour. that at time of there is no evidence
Also, any distracting *6 occurrence there were noises so that bell could not be heard at reasonable by person. distance an attentive It must also be noted customary there is no that it was to have a evidence by flagman crossing alleged plaintiff. at the alleges: complaint, In the “IX and “That at all of the times herein mentioned particularly March railroad cross- 14, 1961, said ing highway and railroad was an extra-hazardous roadway crossing track crossed said in said adjacent angle; crossing was at an acute that said yard switching pro- which to an extensive railroad distracting lights; in duced noises and crossing deceptive at was in that illumination said crossing and the it minimized the existence of rainy, approach in over- that it was trains; noisy, night; in that in the midst of a cast active, was it customary that it was center; industrial in crossing. flagman prior thereto at to have a said rail- was known to defendant That said condition (Emphasis supplied.) road.
“X and railroad was careless “That said defendant crossing gates, failing negligent flashing install or flagman, wigwag lights, or to or to use types crossing other similar out or use flares, set
117 dangers protection with the commensurate actually existing anticipated and to be hazards place happen- crossing at the time said ing herein referred to.” of the accident crossing allegations plaintiff’s are that injured at the time of the accident was she where placed upon the de- therefore, extrahazardous and, duty company use extraor- railroad- fendant engine upon operation dinary of its care in the across street. crossing when un
A law extrahazardous making it so or conditions exist usual circumstances reasonably prudent person dangerous cannot that the safely taken in excess of it measures are use unless normally ap warn the traveler of the those used to Spokane, proach presence Finn et al. v. of a train. or Ry. P2d Co., 720; P. & 214 P2d 218 126, 354, S. 189 Or Doty 207 P2d Co., 308, 321, v. Southern 186 Or Pacific Terminal 176 160 Co., Case v. N. Or 131; 643, Pacific Co., P2d Fish v. Southern 173 Or 313; 294, Pacific P2d P2d 917, 145 991. thought expressed This also this court same Douglas, in Hunt v. P2d where 562, 774, 238 Or *7 we said: existing the rail- “But under the conditions, if, reasonably anticipate a can that motorist road likely
using due would nevertheless be to care crossing, crossing with a train at the the is collide and the railroad must termed ‘extrahazardous’ provide special warning.” some presence it rule that the while is the
Therefore, upon a of of train the track is itself sufficient notice crossing danger, applicable where a such rule is not inis fact extrahazardous. question crossing
The whether a is extrahaz usually question ardous is a to be fact determined jury, supra, Co., the Case v. N. Terminal Pacific are there from which where facts reasonable men existing draw a conclusion that because conditions reasonably prudent person might nevertheless be injured in
crossing.
although
In this
there
evidence that
case,
busy
city,
crossed a
street in the
there
tracks
is no
morning
that
in
when
at this hour
this
evidence
heavy.
occurred traffic was
v.
accident
Carlson
South-
Co.,
77,
ern
219 Or
Since there is no which reason finding be made the accident occurred able could crossing, railroad and there is at an extrahazardous only company exercised that the railroad evidence by having care with usual care but extra switchmen platform engine, lighted forward lanterns on the proof any a failure of as to there was we conclude part negligence of the that it defendants jury. issue error to submit was alleged plaintiff she since that, also contends failing negligent in control the were the defendants reasonable care it in the exercise of “when the car which evident that became approach crossing stopping to said at the was not opportunity engine,” said had the defendants negligence pre- question as to defendants’ a fact jury. determination sented
119 upon Lindsey Plaintiff relies v. Southern Pacific Lindsey P2d 152. The Co., 240 Or 399 facts are 11, Lindsey quite In different from this case. there was jury from which the evidence could have found that operator by maintaining the of the train or observed, proper lookout should have the auto- observed, that riding position mobile in which was in a peril majority of astride the railroad tracks. The opinion party were of the that where a is in a known position danger, may rely upon the railroad presumption anyone public crossing seen on a danger will observe his will then remove himself position danger, oppor- from a but when the must, tunity present, put is its train under control so that if possible, the car remains on the track it if can, avoid the collision.
Lindsey purport change does not the rule that, rights highway while the travelers on and the obligations company reciprocal of a railroad are grade crossings, expected stop train cannot be give precedence approaching to an traveler to first crossing. Oregon-Wash. cross over Robison v. R. Co., & N. 90 Or P 490, 176 594; Hendrickson v. Union
P. R. Co., 17 Wash2d 548, 136 P2d 161 ALR 438, 96. Lindsey purport
Nor does
to set aside the rule
operator
that the
of a train
act on the belief highway
a traveler on
reaching
will
before
yield
right
way. Layne
track and
v. Portland
212
Co.,
Traction
Or
319 P2d
658,
321
884,
P2d 312;
Oregon-Wash.
supra; Hoyum
Robison v.
R N. Co.,
&
Ry.
v. Duluth
P.
Co.,
W. &
203 Minn
279
729;
NW
Bixby v. Boston & M. R. Co., 94 NH
107, A2d 575,
Since negli there is no gence approaching grade of a crossing, traveler no
duty upon operator placed of the train to avoid *9 injuring approaching until time the traveler such reasonably prudent person could from all the facts ap- available traveler is unaware of the ascertain proaching when that determination train, and, made, stop possible, striking ap- if to avoid train, proaching vehicle. present only upon
In the evidence these case, oper- questions from the crew. The fact comes train engine noticed the ator of the testified that he first approaching automobile from the southeast on Front away just approximately engine, as the avenue 750 feet moving approximately an five miles moved hour, The came on at onto Front avenue. automobile an pace, even which he was about or 35 estimated miles per gat As he hour. onto the street he shut throttle just coasting off and was with his hand on the brake valve. He then testified: right. you engine . All tell us where the “Q Can you they going when weren’t ?
was realized imagine “A I can I would it "Well, estimate, wbuld be—. you Do want to use Exhibit 20 for
“Q this, identification? imagine
“A. It would be easier. I would it would be around the center of the street.” engine brakemen on the two front had waving been their and the automobile was lanterns according engineer’s to the non-oral then, estimate point map on a drawn to scale and the then made away. approximately 200 feet He then measured, stopped “I as I could I stated: as soon when realized they going stop.” weren’t also estimated the He engine stopped front of the was four to five feet into traveling. the lane in which the automobile was He engine far made no oral estimate of how traveled “they going stop,” by after realized weren’t he but measuring map the distance on a drawn to scale from stopping where he marked the of the front of the engine to the back center line of the street ais distance engine stopped of 30 feet. He testified that the was just before it was struck the automobile. When long engine stopped, asked how he answered, just “Oh, one, two, like that.” He also estimated that engine traveling at the could stopped be in 10 feet. This latter statement was not amplified. danger, It could mean either after notice of opened, or actually the valve is or after the are brakes applied. *10 plaintiff argues
From the above facts, since that, operator engine testified that the could have been stopped stopped in 10 it feet, could have been before plaintiff it entered the being lane in which driven, negligent acting and, therefore, defendants were in not speed with emergency sufficient in this to avoid the injury by plaintiff. suffered difficulty argument with this is that it
must be noted that there is no substantial of evidence engine engine where the operator was when the first believed that point the automobile had reached the operator’s no return. The oral statement discloses his uncertainty upon only making this fact and that he was guess. a “ * * * impression A mental fails to rise to the dignity testimony of admissible it if. consists of nothing guess conjecture. more definite than a or a * * * In order to be admissible a fact should not
be so indefinite that no certain and definite infer-
Scarpelli
ence can be drawn from it.”
v. Portland
Elec. Power Co.,
It follows without doubt if a mere that, or con- jecture testimony, is not admissible it would not suffice a as substantial evidence of fact. it can be
Before said that the should have stopped by reasonably prudent operator, been sooner certainly must from one have facts which reasonable person judge stop- can the distance traveled it before ping.
“ * * * point The distance of the train from the long illegal it and its as is not collision —so points approach plain —at the various of its sought develop, importance. much tiffs The crucial and decisive element in the decision are not of begins discovery split with the that the second happens will not vehicle involves what * * *." thereafter. Brown Louisville and v. (5th 1956). Nashville R. R. 234 F2d Co., cir, dispute is no that the there the evidence but Also, operator engine applied of the his brakes as soon as operator he that the realized automobile was going stop, stopped engine. not and that he reason as back-
To
does
is
reason
an
ward from the fact that there was
accident to its
possible
avoiding
means
to thus discover
cause,
it,
reasoning
prove negligence.
but such
does not
“ ‘Foresight,
retrospect,
is the standard of
nearly always
diligence.
easy,
It
after an
acci
happened,
dent
to see how could have been
has
it
negligence
judged
matter
avoided. But
is not a
to be
*11
always
question
after the occurrence. It
a
of
reasonably prudent
what
men under the same cir
would or
in
should,
cumstances
reasonable
the exercise of
anticipated.’ [Shearman
have
and
care,
Negligence], p.
Herring
Spring
v.
Redfield on
50”
Packing
brook
299 P2d
Co.,
191, 200,
604,
208 Or
1&3 [the accident] “The fact that it was avoidable prove that there was fault not antici- does not in against Cooley pating providing Judge it.” in Sjogren v. Hall, 53 Mich 274, 278, NW 812.
It is well-established rule of law that needs authority no citation that an actor of not be held judgment for a mistake liable of when formed in or emergency. an under the stress of In the matter before there was no fault in us, anticipating operator not the accident, the of the engine required anticipate negligence was plaintiff in the driver of automobile which the try riding. duty striking His sole was to to avoid did. are automobile, this he We loss to see reasonably prudent person operator what more a as engine injury of an could do to avoid the than to brake progress engine. of the All of the facts disclose operator engine of the was alert and attentive to his duties at all times and as soon as he realized everything the situation he did he could to relieve the peril plaintiff being into which the driven. There upon finding is no substantial evidence which a negligence part operator of the of could be rested. also trial contends that the court was denying
not in error defendants’ motion for a striking directed because the court verdict erred plaintiff’s complaint following allegations from negligence: defendants’
“VIII all “That at times material there was in hereto, duly properly full force and effect enacted City No. ordinance, Ore- Ordinance No. Portland, gon, Section 19-1806 amended *12 Safety and entitled 80685; Contrivances At Crossings, Pailroad which read as follows: “ companies, except ‘All railroad the Port- Company, operating land Traction lines within City install, the operate of Portland shall and maintain, signals manual or mechanical or other warning devices at the intersections of their city respective rights way or lines on streets, City and with streets avenues within the subject approval Portland to the of the Com- charge missioner in track matters. railroad A record of such installaton shall be filed with City the Auditor of the of Portland and shall be an deemed official record.’
“XI negligent “That defendant railroad was in fail- city ing nance in the comply with the aforementioned ordi- opera- installation, maintenance signals warning tion of devices mentioned therein.” appears allegations trial
It court struck these preempted that the state on the basis had field necessity determining the for the installation of public warn devices to travelers on roads mechanical grade approach of trains at level intersections. applicable the time of this 763.170, ORS any provided city petition could occurrence, Utility Commissioner for a declaration that Public public highway “a and railroad one an where cross crossing other at the same level” said is unsafe and dangerous highway, granted to travelers on the authority, Utility to the Public Commissioner if the crossing dangerous, is found to direct the railroad to gates proper warning signals, maintain or install and protect public. to warn and other devices plaintiff contends that this statute did not vest authority grade in the state to find that exclusive remedy crossing and direct the warn hazardous is highway, provides on the since OES 760.050 travelers power regulate “[t]he fix and railway within the limits of cities of less than trains exclusively population state” and 100,000 order the installation of warn- Commissioner also *13 ing grade crossings. signal devices at argues
Plaintiff that since OES 760.050 not does power regulate grant speed the Commissioner to legislative of trains in cities over it was the 100,000, general police intent with to leave such cities their powers, only regulate speed to of trains within power such hut also the to cause the establish- cities, signals. warning ment of agree. applied
We cannot all OES 763.170 to Oregon, regardless specifically cities size, provided that the Public Utilities Commissioner alone grade crossings must determine what in the state are dangerous type warning and the device to he used If to warn the traveler. such determinations are left exclusively to there is no room left in state, which act on matter. cities this ease must he reversed with
Since instructions unnecessary judgment to enter for the it is defendants, assigned. to consider other errors judgment Eeversed with instructions to enter for - , , the defendants. dissenting. DENECKE, J., opinion part holding from that of the
I dissent charge proper that the defendants failed to exercise question presented no of fact and control the defend- entitled to a directed verdict. ants were engineer that he The testified estimated the loco- traveling motive was the center of the street and was per five hour when two to miles he realized the auto- riding going which mobile in was not stop. also He testified at that he could stop the locomotive in ten feet. At the time of the the locomotive had traveled 30 feet from the collision center of the street and four feet within the lane being operated. of travel in which the automobile was opinion evidence I am From this that the jury engineer could infer that did not exercise could reasonable control. It have found that in the engineer of reasonable control the exercise could have stopped the locomotive before it entered the lane of being operated. travel in which the automobile was practical necessity permitting trains to good expeditiously permit move is reason not to juries fast-moving negligent failing hold a train every crossing vehicle when an automobile approaching. present That reason is not where the *14 engineer going knew the automobile was not being operated locomotive was at a permitted stopped which it to be before it entered the automobile’s lane of travel. In such circumstances opinion I am of the that the issue -of control is one Bailey Pennington, jury. (8th v. 274 F2d 328 1960). Cir opinion.
Sloan concur in JJ., Holman,