Adamsen v. ASBURY TRANSPORTATION COMPANY

• Decision Date: 20 November 1962
• Docket Number: No. 17604.,17604.
• Citation: 309 F.2d 356
• Parties: Roy ADAMSEN, Appellant, v. ASBURY TRANSPORTATION COMPANY, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

309 F.2d 356 (1962)

Roy ADAMSEN, Appellant, v. ASBURY TRANSPORTATION COMPANY, a Corporation, Appellee.

No. 17604.

United States Court of Appeals Ninth Circuit.

October 15, 1962.

Rehearing Denied November 20, 1962.

Hess & Hess, Henry L. Hess, and Clayton Hess, Portland, Or., for appellant.

Koerner, Young, McColloch & Dezendorf, John Gordon Gearin and James H. Clarke, Portland, Or., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and BOWEN, District Judge.

JERTBERG, Circuit Judge.

Appellant (plaintiff below) a citizen of the State of Oregon, instituted suit in the district court against appellee (defendant below), a California corporation, to recover damages for personal injuries alleged to have been sustained in a railroad crossing collision when a passenger train on which he was a passenger collided with appellee's tank truck and tank trailer which was crossing the railroad tracks. Jurisdiction of the district court was properly invoked under Title 28 U. S.C. § 1332.

Following trial to a jury, a general verdict was returned in favor of appellee and judgment upon the verdict was entered in its favor. Following denial by the district court of a motion for new trial, appellant filed a timely appeal. This Court's jurisdiction rests upon Title 28 U.S.C. §§ 1291 and 1294.

The accident occurred at a railroad crossing located in an industrial area of gasoline and oil storage plants near Portland, Oregon, at about 4:15 P.M. The railroad crossing consisted of four sets of tracks. The two inner sets of tracks were for main line travel and on each side of the main line tracks, and parallel thereto, was a set of tracks used for switching purposes. The tracks ran in a general northerly-southerly direction. Doane Street crossed the tracks in a general easterly-westerly direction. The railroad maintained at the crossing a flashing red light "STOP" signal on each side of the railroad tracks and an automatic, continuously lit "STOP" sign on the easterly side of the tracks and the southerly side of Doane Street, but no barrier, flagman, or two-train signal were maintained at the crossing.

The diesel tank truck and tank trailer had an overall length of 60 feet and its maximum speed was three miles per hour. At the time of the accident, the tank truck was loaded with gasoline and the tank trailer with diesel oil. It was being operated by an experienced, long-time employee of appellee. He was thoroughly familiar with the crossing. He had operated a tank truck and tank trailer over the crossing a number of times each day for a period of several years. Shortly before the accident the tank truck and tank trailer was traveling from east to west on Doane Street. Weather conditions were good.

As the operator of the tank truck and tank trailer approached the track crossing, a freight train traveling north on the most easterly set of the main line tracks was slowly crossing Doane Street. The flashing red light "STOP" signals were operating. The operator stopped the equipment behind two stopped automobiles. When the rear car of the freight train cleared the crossing, the two automobiles proceeded across the tracks followed closely by the tank truck and tank trailer traveling about three miles per hour. The flashing red light "STOP" signal on the westerly side of the crossing continued to operate. Because of switching operations of the railroad company, the "STOP" signals customarily operated day and night, "hour after hour," even though no train was approaching the crossing. When the freight train had cleared the crossing by an estimated 20 to 50 feet and the tank truck was on or approaching the second set of main line tracks, a passenger train was approaching the crossing from the north at a speed of about 35 miles per hour on the second set of main line tracks. The train's automatic air bell was continously ringing and the whistle was being intermittently blown from about 1,000 feet north of the crossing but were not heard by the operator. When the cab of the tank truck was on or near the first track of the westerly set of main line tracks, the operator first became aware of the approach of the passenger train which was traveling on the westerly set of the main line tracks. He made no attempt to speed up by shifting gears for fear of missing the gear. The engine crew of the approaching train saw the tank truck at a distance estimated by the engineer of two to three hundred feet, at which time the air brakes of the train were applied. The engine struck the tank trailer and stopped about 500 feet south of the crossing, with a portion of the rear car within the crossing.

Appellant was traveling as a passenger on the train. He testified that he was in a stooped position preparatory to getting his luggage and alighting from the train when the accident occurred, and that because of the emergency stopping of the train he was thrown to the floor and sustained the injuries of which he complains.

Although appellant noted seven specifications of error, only five are presented in appellant's brief. Of these, two relate to instructions refused, one to the denial of appellant's motion for new trial, one to the admission into evidence of a deposition taken by appellant of his attending physician, and one to the admission of evidence concerning appellant's retirement and characterization thereof by the district court.

The first alleged error concerning instructions of which appellant complains relates to the liability of appellee. Appellant contends that the court should have withdrawn from consideration by the jury the issue of appellant's negligence and should have instructed the jury that appellee, as a matter of law, was guilty of negligence proximately causing the collision, and leaving for consideration by the jury on the issue of liability only whether appellant suffered injury or damage proximately caused by the collision. An instruction offered by appellant so instructing was refused by the court.

Did the district court err? Appellee contends that the action of the district court must be sustained primarily on the authority of Fish v. Southern Pacific Co., 173 Or. 294, 143 P.2d 917 (1943), rehearing denied 145 P.2d 991 (1944); and Doty v. Southern Pacific Co., 186 Or. 308, 207 P.2d 131 (1949).

These decisions were construed by the Supreme Court of Oregon in McNealy v. Portland Traction Company, 213 Or. 659, 327 P.2d 410 (1958). In the course of the opinion that court stated (327 P.2d at pp. 412-414):

"Plaintiff urges that the strict rules relative to railroad crossing collisions have been abandoned, and that recent decisions of this court clearly demonstrate a retreat from the `stop, look, listen and reconnoiter\' standard and an embracing of the `reasonable man\' test in its stead. Citing Doty v. Southern Pacific Co., supra, and Fish v. Southern Pacific Co., 173 Or. 294, 143 P.2d 917, 145 P.2d 991. He maintains that the modern Oregon rule requires the traveler approaching a grade crossing to use only that degree of care which an ordinarily prudent person would use under the same or similar circumstances.

"A great many Oregon cases may be cited to support what plaintiff terms the `strict rule\' of contributory negligence. Andersen v. Southern Pacific Co., 165 Or. 368, 106 P.2d 1048; Stovall v. Portland Elec. Power Co., 127 Or. 518, 273 P. 701; Kirby v. Southern Pacific Co., 108 Or. 290, 216 P. 735; Robison v. Oregon-Washington R. & Nav. Co., 90 Or. 490, 176 P. 594; Cathcart v. Oregon-Washington R. & Nav. Co., 86 Or. 250, 168 P. 308; Hecker v. Oregon Railroad Co., 40 Or. 6, 66 P. 270.

"It is not necessary for us to set forth the facts in Fish v. Southern Pacific Co., supra, as they are fully set out in that opinion. It should be noted, in that case there existed at the railroad crossing conditions which made the passage over the tracks extra-hazardous, and this court relaxed the rule of law that a motor traveler at a railway crossing whose view of approaching trains is obstructed is required to stop his automobile at a safe place and `go forward on foot to a point where an unobstructed view of the track may be obtained.\' 173 Or. 294, 143 P. 2d 925. To this extent this court overruled its previous expressions in Robison v. Oregon-Washington R. & Nav. Co., supra, and Cathcart v. Oregon-Washington R. & Nav. Co., supra. The court, however, approved its previous statement of the rule of law as to `looking and listening\' as set forth in the Robison case, 90 Or. at page 502, 176 P. at page 598:

"`All the precedents make it incumbent upon the traveler both to look and listen. Neither of them can be eliminated, without (sic) its use is practically impossible. The law does not excuse him from exercising both of them, unless there is no reasonable opportunity for that purpose.\'

"In Doty v. Southern Pacific Co., supra, we find another case where a traveler was injured at an extra-hazardous railway crossing where conditions then existing limited to a high degree the traveler\'s vision and hearing. The plaintiff was not required to leave her automobile and was only required to see what might have been seen therefrom, but we find nothing therein which detracts from the stated rule of law set forth in Robison v. Oregon-Washington R. & Nav. Co., supra, as approved in Fish v. Southern Pacific Co., supra, at a reasonably normal grade crossing.

"From a thorough consideration of all of these opinions, it is still the law of this jurisdiction that a traveler approaching railway tracks must, when there is a reasonable opportunity to do so, look and see what is to be seen or be guilty of conduct barring his recovery.

* * * * * *

"The plaintiff relies upon Doty v. Southern Pacific Co., supra, for his contention that a traveler approaching a grade crossing is required to use only that degree of care that a reasonably prudent person would use under the same or similar circumstances.

"`A railroad crossing is an inherently dangerous place,

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