Andersen v. Southern Pacific Co.
| Decision Date | 07 November 1940 |
| Parties | ANDERSEN <I>v.</I> SOUTHERN PACIFIC CO. |
| Court | Oregon Supreme Court |
Negligence of driver of car as imputable to passenger, note, 9
A.L.R. 630. See, also, 5 Am. Jur. 781
52 C.J., Railroads, § 1926
Appeal from Circuit Court, Lane County.
Action by Amy Andersen, by Luella Mayo, her guardian, against the Southern Pacific Company for injuries sustained in a collision between an automobile in which plaintiff was riding as a guest and defendant's railroad train. From judgment sustaining defendant's motion for an involuntary nonsuit, plaintiff appeals.
AFFIRMED. REHEARING DENIED.
H.E. Slattery, of Eugene (Slattery & Slattery, of Eugene, on the brief), for appellant.
James C. Dezendorf, of Portland (Alfred A. Hampson and R.R. Morris, both of Portland, on the brief), for respondent.
The plaintiff brought this action by her guardian to recover damages for personal injuries sustained in a collision between an automobile in which she was riding as a guest and one of defendant's railroad trains. The accident occurred at 9 o'clock in the evening of August 20, 1939, in the city of Eugene, where the railroad track crosses Jefferson street.
At the close of plaintiff's testimony in chief, the trial court sustained a motion for involuntary nonsuit, and plaintiff has appealed.
It is alleged in the complaint that the defendant was negligent in the operation of the train in that no headlight was burning on its locomotive and no warning was given of the approach of the train, either by the blowing of a whistle or by ringing the bell, or in any other manner. It is also alleged in the complaint that, under an ordinance of the city of Eugene, it is unlawful to operate a train within the corporate limits of that city at a rate of speed in excess of 15 miles per hour and that the train at the time of the accident was being operated at a much greater rate of speed than that permitted by the ordinance.
According to the testimony offered on behalf of the plaintiff, she and three other persons were riding in a Model-T Ford and, as they approached the track, they stopped 26 feet from the track and all looked and listened and none of them saw or heard the approach of the train; that they then started to cross the track; that, at the place where they stopped, there was a tree on the side of the street which partially obstructed their vision, but that they could see down the track for a distance of 156 feet; that, after passing the tree and before reaching the track, the track in the direction from which the train was approaching was visible for a considerable distance, but that none of the occupants of the car either looked or listened.
Plaintiff's witnesses all testified that it took three seconds for the automobile to reach the track after starting from the place opposite the tree, in going the 26 feet. There was no evidence showing the position of the automobile and of the train at the time of the collision. Whether the automobile ran into the side of the train or whether it was crossing the track at the time of the collision, the evidence does not disclose, but it appears that the automobile was thrown for some distance and demolished, and that plaintiff thereby sustained the injuries complained of.
All plaintiff's witnesses testified that they did not see the train, or hear the ringing of the bell or the sound of the whistle, but no witness testified that the headlight on the train was not burning, or that the whistle was not blown or that the bell was not rung before and at the time the train crossed Jefferson street.
It appears from the bill of exceptions that the trial court in sustaining the motion for involuntary nonsuit, pointed out his reasons for sustaining the motion as follows:
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