*1 Argued January January 4; rehearing 31; reversed and remanded May 17; opinion May former sustained FINN et al. v. SPOKANE, PORTLAND & SEATTLE
RAILWAY COMPANY (2d)
214 P. (2d)
218 P. *2 argued Alton Bassett, John of Portland, the cause appellants. for himWith on the briefs William J. Crawford, of Portland. Beatty, argued Jr.,
John C. of Portland, the cause respondent. him on the With brief were Hart, McCulloch, Spencer, Manley & Bockwood, and B. Strayer, all of Portland. Chief Justice,
Before *3 and Lusk, Brand, Belt, Hay Justices. Page, and Bossman, J. BELT, damages person
This is an action to to recover resulting by plaintiff property and from a collision standing grade on a Finn’s automobile with Vaughn at the intersection of Northwest and in Portland, street Northwest 22nd avenue Ore- gon. plaintiff party by insurance a is repairing having paid reason of cost of auto- the the plaintiff’s At conclusion of the mobile. the case company moved for a the defendant railroad chief, judgment involuntary grounds on the that: nonsuit of tending negligence (1) is no to there evidence show guilty (2) the the driver was defendant; contributory negligence aas matter of law. From judgment compliance entered motion, with this plaintiffs appealed. have The motion—which is in effect a demurrer to the requires light a statement of the facts evidence— plaintiffs. They most to favorable are entitled every benefit of reasonable inference that can from the be drawn evidence. If reasonable-minded persons would differ as to be the inference to drawn question jury evidence, from the is one for the elementary principles require determine. These lawof authority. citation no Vaughn
Northwest street arterial running east and west which intersects 22nd avenue right angles. Vaughn at street —which is surfaced with “black-top” pavement and was wet at the time of the part highway (U. 30) accident—is a of a trunk S. No.
leading Ordinarily, heavy from Portland to Astoria.
traffic moves over this At the street. southeast corner city light intersection the maintained traffic “yellow” Vaughn which flashed street and showed consisting “red” on 22nd avenue. The of an train — engine, gondola facing and a a box car car—was south engine ,The on 22nd box avenue. car had crossed stopping. before It the intersection was the dark gondola colored car that blocked intersection. There flagman, signal warning no flare or other' traveling public presence of the of the train. morning January
About 6:20 o’clock on thoroughly plaintiff driver, who was familiar *4 driving in question, was his auto- with the right per miles hour east on the mobile at fifteen side Vaughn Brooklyn en railroad street route to shops a mechanic. It a cold, he worked as was where visibility foggy morning,
dark had only thirty forty testifying Plaintiff, feet. after failing any although he about to see hear train — for told how the acci- looked and listened one—thus dent occurred: * ** I intersection, I into that didn’t “A come thing only I I could see—and train; see way, although looking I had all never it was I there a railroad before knew was
seen one there a caution I knew that there was there and track light I couldn’t see the conditions there but under simple that —there was reason that it gondola I seen the road and when ear that was any stopped. If had been it the train it was going I I could if been think other wise, .had headlights I have seen because could have seen it through cars. in the breaks
[*] you come train did what car of this Now “Q with? in contact (gondola).” car third “A It is the plaintiff Finn testified: examination On cross ‘ ‘ you more about what a little tell us will Now Q were? conditions weather morning, foggy it was it was Well, “A misting. Idnd of (( # [*] #
30 or “Q “A a [*] 40 feet. How Well, [*] # heavy like I said about — fog? visibility about fog? high fog or a low was this Now “Q pretty low. It was “A top you you do it, over the see Could
“Q know? No.
“A *5 away you You “Q were about 20 feet when
n actually saw the train? right. That is .
.“A ii “Q [*] Do # [*] you have any explanation why you you only able see until weren’t it were 15 feet (cid:127) away? Fog.
“A.
a # m [*] (By Strayer) you any “Q Mr. Well, do have explanation, you say you Mr. since Finn, could you, you any see '30 feet do ahead have explanation why you did not see the train until you only were from feet it? ‘‘ seeing j A There is difference a dark ob ect fog just seeing, visibility being ain a certain distance too.
(( “Q Were [*] # [*] you watching for trains?
“A I to a certain that I extent, knew there I railroad track there but had never . seen there. one
" about a “A Oh, it ee “Q [*] You # year, [*] had been hadn’t is longer you? that; than couple every day years. 15 feet a “Q [*] “A That away you And # [*] when right. applied immediately you saw the train then about your brakes ? you straight
‘1Q And then skidded forward into the train? n Straightforward.” “A (Note: “perfect Plaintiff said his brakes in were condition.”) mechanical # # # ii you [cau- “Q You think couldn’t have seen it light] top you
tion over the the railroad car, mean? right.”
“A That is Dominic had DeSanta, who been familiar with this eighteen past years, testified that during only he time had twice seen a train on this spur Finn, driver, track. Mrs. wife of the never testified that she had seen a train on the track. gravamen charge negligence against of the stopped its the defendant railroad is that it *6 part crossing or on a train, thereof, some an flagman highway having any a or without arterial signal highway to traffic warn vehicular that the was so ques approaching consideration of this blocked. the duty keep in to mind that the of those tion, is well using highway operating a train and a the motorist reciprocal. nor is Neither the railroad motorist has highway right to of the must exclusive the use but regard rights to of the other. it with due Of use right precedence at a the railroad has the course, crossing. negligence it is not
It is established that well crossing per stop a a train on a for reasonable tose knowledge length that is an emer It common time. requiring part gency may train, or some thereof, a arise crossing. stopped In the instant case it does on a to be why appear this black the evidence reason from not gondola Ordinarily, stopped. that would be ear knowledge employees oper of the a matter within hardly assume reasonable to ating It is train. long know how driver would that crossing prior the accident to on had been train blocking highway. reason or the light clear in the of the authori is also think it We company right have the would railroad ties that using would a motorist that to assume striking standing a train to avoid care due exercise
133 It if crossing. equally plain on seems unusual conditions exist at a extraordinary thereof there is a to a by reason likelihood injury he using motorist even was exer- highway, though care, reasonable would im- cising greater duty be the railroad posed It will do under upon company.
such circumstances for the railroad merely to the train itself its say adequate is notice of and that use must presence those who the highway themselves govern accordingly. ordinary
Under conditions a railroad notice of its adequate and there presence, is no use other duty flares or signals flagmen, warn a motorist as it any be may assumed danger, that he due care to Doty injury. will exercise avoid Southern Co., 186 Case 308, Or. 207 P. (2d) 131; Pacific Co., v. Northern Terminal P. 643, Or. Pacific (2d) 313; Fish v. Southern Co., 294, Or. Pacific Irwin v. 143 P. P. 991; Southern (2d) (2d) 95 P. 62. (2d) Or. Pacific *7 A different rule would obtain, however, if the existing under crossing conditions was unusually or hazardous dangerous. It would then be the duty of the railroad to use reasonable precaution to warn a that a motorist train the highway. Whether blocked care reasonable under such circumstances required use of or flares other a flagmen, signals would be of fact Doty v. question determine. jury Co., Southern v. supra; Case Northern Pacific Pacific Co., Terminal Fish v. Southern Pacific supra; Jur., As stated in 44 supra. Am. 506: Railroads, 747, § not a “Whether or given unusually is crossing is a a for unless dangerous question one jury, only conclusion could be by drawn all men reasonable from the thereto.” evidence relative degree be care would commensurate with
danger being applicable involved—such alike to rule the railroad and to the motorist.
As to what an dan- constitutes extrahazardons or gerous crossing question railroad is a there which great authority. is conflict of See cases notes: Obviously, A. L. R. A. L. R. 1277. each 1166; depends upon ease own factual situation. Courts its though even is no differ their conclusions there apply material difference in facts. Some courts buggy” age to a motor and seem “horse and rules any liability imply could be no under there the railroads have factual situation. other cases against injury. practically do made insurers We been adopt of these extreme views. either may whether a railroad How it be determined opin crossing ? extrahazardous In our is hazardous or company through operative railroad its em if the ion, existing reasonably ployees could, under the conditions, exercising anticipate motorist due in driv care having lights ing standard would automobile his likely injured by to be reason of the be nevertheless blocking highway, it can then be said that dangerous. As said is extrahazardons Rys., 138 Me. 23 A. 222, Nat. Canadian Plante (2d) 814, 817: necessity proper to the warn test as “The by highway
ing, obstructed when night, railway unlighted is whether the train at proper employees, care, should in the exercise danger recognize collision with a vehicle ordinary prudence.” Citing by operated in man of Ry. support v. Central Vermont thereof: Gilman Philadelphia R. A. L. 1102; A. 340, 107 Co., Vt. *8 ReadingRy Dillon, 247, Del. v. 31 Co. . &
135 A. A. L. 62, 15 R. 894; St. Louis-San Francisco Ry. Ala. Guthrie, 215, Co. v. So.
A. L. 219 1110; R. Trask v. Boston & Maine Railroad, 1022.
Mass. N.E. Rys., supra, cases in cited Plante v. Nat. Canadian support the rule as but in each stated, above of them the court held as a matter of law that the facts did question not show that the railroad in was dangerous. In or v. extrahazardous Gilman Central Ry. supra, Vermont the driver of the automobile at a (cid:127)struck because he unable stop “greasy account of the condition of the road.” The court well said that the defendant rail responsible road not this condition that there nowas evidence that the trainmen knew Philadelphia ought or to have In known of its existence. ReadingRy supra, plain Dillon, Co. . & driving at tiff the time of the in collision was a ear night lights at time as court said, without which, part a “would indicate intent well-defined on the driver to rather commit than the suicide, exercise ordinary care.” case evidence was con flicting night, but, about the darkness of the as the misty, foggy, court to be “it was shown said, rainy.” Ry. In St Louis-San Francisco Co. v. Guthrie, supra, the court held that the evidence left mere conjecture whether the trainmen exercise ought anticipated reasonably care to have due likely driver on the would not careful see supra, Maine Railroad, train. In Trask v. Boston & crossing upon highway at a the accident occurred country city populous and not on an arterial morning highway. o’clock in the It occurred at one place the court said, at as could where, a time “it *9 reasonably anticipated that not have been there would great any, upon of if the travel, have a amount been highway.” did remark the court, The that however, infrequently many spur used. There are track was the factors in instant case relative to involved the crossing question railroad as to or not the whether any appear in do not was which extrahazardous last four the cases cited. question in was extra-
Whether the dangerous be after a con hazardous must determined the of all facts and circumstances. Here sideration operating his at a driver was automobile speed foggy morning and rate of on dark reasonable gondola a black-colored car collided with when he populous city. blocking in a His an arterial forty only thirty range feet. About vision was elapsed the time that he saw between first one second gondola distant and when he struck car fifteen feet traveling per hour. The fifteen miles if he was it, light was accustomed to doubt, which no caution he, by gondola seeing completely car. obstructed by fog black-top pavement, accentuated and The undoubtedly background, did much dark absorb extremely lights and it automobile made highway. obstruction Poehler to see the difficult App. (2d) Mo. S. W. 59. Lonsdale, 235 v. be borne mind that this it should Furthermore, moving. gondola fact It well known car was object standing see difficult to such it is more that fog than it would be if in dense a moving moving. train, noise of a which were to be taken into is also factor hazard, lessens Bingham Powell, C. 195 S. consideration. A. L. R. 1175and 16 A. L. R. (2d) 275; notes
E.S. 1284. had never Plaintiff driver seen a train on this spur foggy morning track until this dark and when suddenly unexpectedly sight. loomed into There is no direct evidence as to the amount traffic at the time think collision, but we a reasonable proven inference can be drawn from the facts heavy many persons, the traffic other particular no en route doubt, were to their at work this morning. Viewing time of the this in the evidence light plaintiffs, say most favorable to the can we as *10 crossing a matter of law that this railroad was not dangerous? opinion, or extrahazardous In our prima evidence sufficient to constitute is facie case negligence part of of the defendant railroad company. weight
We are not unmindful that the numerical authority contrary of to our conclusion that there tending negli is some substantial evidence to show gence. However, it is believed that the modern trend authority keeping many juris is in therewith. In company dictions, the courts refuse to hold railroad negligent at such accidents for the reason right that trainmen have the to assume that an ordi narily prudent person would drive his car at such speed stop range as him to to enable within the of his following the much vision, cited ease v. Lauson 57, 141 Wis. 123 N. Fond Du W. Am. Lac, 629, 135 St.
Rep. (n.s.) R. A. L. 40. 30, 25 This court, however, adopted this hard and fixed has not rule that a driver an must under all automobile circumstances be able range stop within of his vision. Alt v. Krebs, (2d) Murphy 256, 804; 88 v. 161 Or. P. Hawthorne, discussing 319, 244 44 A. L. R. 79, 117 Or. P. 1397. Murphy question, court in the
such this case—involv- ing parked an a truck a collision of automobile with lights highway night on the at without —said: right to in the absence assume, “Plaintiff had a contrary, of notice to the that defendant would dusty, gray-colored put this truck on light displaying a on the red after dark without lighted, If truck had been rear thereof. jury might inference have drawn the reasonable well striking been able to avoid would have it.” in A. L. R. editor’s comment on such rule 1403.
See reasoning Applying to the case at it bar, the same if would seem that this was extrahazardous given railroad had reasonable and the some warning presence train, notice might striking have it. been able to avoid motorist fairly support following view that cases negligence the issue of from error withdraw Doty supra; jury: Fish Co., v. Southern Pacific supra; Oregon Co., Russell R. & v. v. Southern Pacific Angeles v. 102 P. Peri Los 619; 54 Or. N. 128, Co., (2d) Ry., (2d) P. 441; Richard Cal. Junction Sylvester Me. Same, v. R. v. Maine Cent. supra; Broberg Lonsdale, Poehler 811; 168 A. *11 (Mont.), Ry., (2d) 851; 182 P. Northern v. Pacific Ry. Co., 102, 101 Mont. Northern v. Jarvella Pacific Angeles (2d) R. v. Salt Lake Co. Los & 446; 53 P. (2d) (2d) P. Lytle, 934, 464; P. 192, 47 52 56 Nev. 123, 140 Co., Coast Line R. S. C. Atlantic Miller v. L. Ed. 48 U. S. 72 S. Ct. 675, 275 424, 138 S. E. 556, 103 E. 543; 114 S. S. 262, C. v. Prescott 117; Hines, (2d) Camp Mfg. 32 E. 528, 183 Va. S. Co., Godwin v. R. 17 Co., Wash. v. Union Hendrickson 674; Pacific (2d) v. R. Arnold Illinois Cent. (2d) P. 438; 548, (2d) (2d) 98. (La.), So. 32 So. Co., In cited, the Arnold case last above a there was early foggy morning collision on between an auto- stopped car mobile and a tank on the track of the highway right angles a at railroad which crossed main just corporate beyond city the limits of the of Ham- foggy mond. The court said the was so weather plaintiff “could not see the Arnold tank car across highway on account of its color, the condition of visibility poor and road, because of the dark- fog.” charged ness and The railroad was negligence, among things, failing with other in to have adequate warning signals notify other devices and to crossing. judg- of the motorists The court sustained a keeping held, ment for the and in with the reasoning Squyres v. La. Baldwin, duty So. 14, that was the the railroad take to precautions protect blockiug extra to traffic when this highway. The court said: employees “The railroad knew this frequently
be used as it' is on one of the main thoroughfares They State. also knew that heavy fog visibility poor, the to have remained content to tive train but seem stay respec- in their
places engine caboose while their blocking quarter a of a mile away -probably for at least few two minutes— during they time three which have should minutes — reasonably expected several -automobilesand trucks crossing.” approach Doty supra, Co., In Southern and Fish v. Pacific supra, involving each Southern collision Pacific moving grade an automobile and a between at a corporate city, of a within limits judgment plaintiff. court sustained Both of daylight. occurred these accidents Fish case *12 plaintiff’s main that vision of the there was evidence by box cars on the switch line track was obstructed parallel Doty plaintiff’s In the case the track thereto. by box cars. There was vision was likewise obstructed to in both cases relevant other evidence considered danger crossing, of the railroad but the obstruction undoubtedly by prin- cars of vision the box was cipal The court held in cases that there factor. both tending to the rail- show that substantial evidence was crossing dangerous, or was extrahazardous road jury question of to whether it fact as that was failing negligent in to main- was the railroad warning signal crossings. flagmen at the or tain some Doty existing and Fish cases conditions If the an unusual it hazard, evidence of substantial were combined circumstances in seem clear would question to raise a case be sufficient the instant would crossing was extrahazardous. fact as to whether danger far does it make—so as difference "What your by is obstructed box vision concerned—whether fog? bydr dense cars
Meaney Electric Power 131 Or. v. Portland 1929—was an action to P. 113—decided in arising night damages out of a collision in the recover logging empty and an an automobile between community standing in rural on a Clacka county. emergency stop. Plaintiff had It mas was granted judgment. trial, The trial court new appeal. court said affirmed This was this order not extrahazardous and that error jury duty instructing as to committed flagman warning signals. have a the defendant proper that was to submit to It was held, however, question jury of failure blow whistle. *13 emergency an in the trainmen were existed, If fact a time which to warn the entitled to reasonable danger, assuming crossing of the to be motorist crossing If not extrahazard- extrahazardous. was adequate presence. of the train itself was notice its ous, supra, In Co., v. there was Irwin Southern Pacific empty logging also a a truck and an collision between stopped at of the North a Santiam highway in of train, arterial the town Aumsville. The southerly stopped direction, which was headed in a had purpose taking of at a tank on the south water highway. driving side of the The decedent was his lights burning, westerly truck in a with at direction, speed approximately per a 35 miles hour. The highway right angles track crossed the at and was about to four feet above the common level of the two highway. The accident occurred about 8:30 o’clock evening on June 1939. The weather was cloudy black-top pavement and the was In this wet. twilight visibility poor. hour, the was The train had standing on been left from five to fifteen prior minutes to time of the collision and was in violation of the rule's in reference to the public crossing. of a flagman, obstruction There no was light signal to warn a motorist that the by empty “logging blocked these was flats.” There n testimony extremely that it was was difficult for a approaching driver of automobile the track see to “logging a a appeal narrow steel beam of flat.” On involuntary judgment nonsuit on affirmed (1) grounds: tending there no evidence to part negligence company; show of the railroad guilty (2) contributory negligence decedent was to as matter law.
It is difficult decision in to reconcile the Irwin supra, Co., Southern with our conclusion in the Pacific although case at the facts in the two cases are bar, materially light respects In some different.
more recent decisions of and those from this court jurisdictions above we think Irwin v. cited, other South- controlling. supra, is ern evidence Co., Pacific opinion, was, on both issues in our suffi- case present question jury to of fact for the decide. cient certainty should in the law There be some supra, is overruled. end Irwin v. Southern Pacific at it cannot be said as matter the case bar guilty of contribu of law that the driver was tory negligence. applicable *14 issue con The law to the of tributory negligence thoroughly reviewed in lengthen Doty no to and Fish and we see need cases, by repetition. opinion it In eases was held those this guilty plaintiff therein was of con that whether question tributory negligence is of fact. There good equally As said in French reason to so hold here. (2d) P. P. 170, 135 Christner, 173 Or. (2d) 674, 676: contributory determining question
“In negligence plaintiff, the conduct of the must measure we subsequent light events, but not have which would been by care the standard ordinarily prudent by and careful exercised appearing then conditions person under exist.” trial, remanded for a must be new cause
Since judge guidance of trial advisable deem we specification negligence following say complaint from should be eliminated alleged jury: by the consideration “(a) operating track train on his said public, in view of previous to the notice
without used had not been said track the fact many years.” except in rare for instances involuntary judgment reversed nonsuit and the cause remanded for new trial.
Page, J., decision. did this participate J., C. J., dissent. Brand, Lusk, petition por rehearing. On argued the cause Bassett,
Alton John of Portland, appellants. for him the briefs was J. With William Crawford, of Portland.
Manley Strayer, argued B. of Portland, the cause respondent. With him on the brief were Hart, Spencer, Beatty, McCulloch Rockwood, & and John C. all of
Jr., Portland. supporting respondent’s Briefs of amici curiae peti- rehearing by tion for Young filed Clarence J. and John Roy Gordon Gearin; F. Shields and Randall B. Hester, all of Portland. by
Brief of amici curiae, contra, filed Landye Green, &Richardson and Burl L. Tongue Green, Hicks, Davis & and William M. Dale, Jr., Anderson & Franklin, *15 Emerson U. Paul R. Hanley Sims, Harris, Leo and Carey, A. fUvnrv J. Robert Jr., Patterson, Krause, &, Korn, Evans and Yunker & all Jordan, of Portland; George H. Brewster, Redmond; W. C. Winslow, Spaulding, Brazier Small, C. and Bruce all of Salem; Frohnmayer, Neff & of Medford; and David B. Evans, Eugene. opinion sustained.
Former J.
BELT, again carefully this case and considered haveWe original opinion on adhere to the have concluded to hearing. Hay JJ., concur. Latourette,
Rossman, Bailey, dissent. J., J., C. Lusk, Brand,