66 P. 270 | Or. | 1901
delivered the opinion.
On June 8, 1900, the plaintiff and one Calbreath were driving in a westerly direction, along a public highway, in a light, wide-tired wágon drawn by two horses. The road runs substantially parallel with, and two hundred or three hundred feet from, a railway track, for perhaps half a mile, the intervening space being partially covered by a growth of pine trees, obstructing the view at intervals. The roads gradually converge, and the wagon road crosses the railway track at grade. The men were both familiar with the crossing, and, as they approached it, slowed down their team to a speed of about a mile or a mile and a half an hour, listening carefully all the time, and looking, as they had opportunity, for a train from the east. The road was soft and sandy, so that thewagonmade but little noise, — not enough, according to the plaintiff’s testimony, to interfere with the sense of hearing. About thirty-five or forty feet from the crossing they could see the track for several hundred feet east, but from here the view from the road is again obscured until within nineteen feet of the crossing. The plaintiff says that at the former place he looked for a train, and, in listening, “so nearly stopped that you could not tell we were moving.” After thus satisfying themselves that there was no danger from the east, they turned their
Although it is negligence for a traveler not to look and listen for approaching trains before attempting to cross a railway track, the law does not undertake to determine whether he shall do so at any particular place or given distance from the crossing. It is only required that he shall look and listen at the time and place necessary in the exercise of ordinary care; and this is generally a question for the jury, under all the circumstances of the particular case; for, as said by the Supreme Court of New York: “If, in ease of an accident at a crossing, it appears that the person injured did look for an approaching train, it would not necessarily follow as a rule of law that he was remediless because he did not look at the precise place and time when and where looking would have been of the most advantage. Many circumstances might be shown which could properly be considered by the jury in determining whether he exercised due and reasonable care in making his observation”: Rodrian v. New York, N. H. etc. R. Co. 125 N. Y. 526, 529 (26 N. E. 741). See, also Moore v. Chicago, St. P. & K. C. Ry. Co. 102 Iowa, 595 (71 N. W. 569); Cleveland, etc. Ry. Co. v. Harrington, 131 Ind. 426 (30 N. E. 37); Smith v. Baltimore & O. R. Co. 158 Pa. St. 82 (27
At the argument considerable reliance was placed upon the case of Blackburn v. Southern Pac. Co. 34 Or. 215 (55 Pac. 225), but it differs in very many respects from the case at bar, and is not an authority here. There a traveler on a hard, dry, and somewhat rocky street, where the view was entirely obstructed, attempted to cross a railway track at a blind and dangerous crossing, without stopping the noise made by his wagon so that he could effectively listen for an approaching train. Here the plaintiff was not compelled to rely alone upon his sense of hearing. The crossing was not entirely obstructed, but before reaching it he could see the track at intervals in the direction from which the train approached. The road was sandy and soft, and the wagon on which he was riding made but little, if any, noise. Under these facts reasonable minds might differ as to whether he exercised due care. The court, therefore, could not determine the question, and properly referred it to the jury. What was said in the Blackburn Case about the law prescribing the quantum of care required of a traveler at a railway crossing was not intended, as the context shows, to mean that the courts should
The defendant also complains of the refusal of the court to mstruct the jury that, if there was a space on the public road, before the crossing was reached, from which the plamtiff could have seen the tram approacMng, is was his duty to have looked from that place, and, if he failed to do so, he could not recover. But, as we have already said, the question as to whether he was negligent in not looking for an approaching train from the east at any given place was a question of fact for the jury. The evidence shows that he was proceedmg cautiously, looking and listenmg for a train. He was, therefore, not acting recklessly, but with the danger in mind, and with some degree of care and prudence; and whether it was sufficient was for the jury, and not the court.
The mstruction taken from Haines v. Illinois Cent. R. Co. 41 Iowa, 227, 231, a portion of which the court refused to
There are several other assignments of error, but they are all substantially covered by what has already been said, and the judgment is therefore affirmed. Affirmed.
See note to this case: Negligence as a Question of Law ; Duty to Look and Listen at Kailway Crossings.