Blackburn v. Southern P. Co.

• Decision Date: 05 December 1898
• Parties: BLACKBURN v. SOUTHERN PAC. CO. [1]
• Court: Oregon Supreme Court

55 P. 225

34 Or. 215

BLACKBURN v. SOUTHERN PAC. CO. ^[1]

Supreme Court of Oregon

December 5, 1898

Appeal from circuit court, Clackamas county; Thomas A. McBride Judge.

Action by Sarah A. Blackburn against the Southern Pacific Company. There were verdict and judgment in favor of plaintiff, and defendant appeals. Reversed.

W.D Fenton, for appellant.

C.D Latourette and W.H. Dobyns, for respondent.

BEAN J.

This is an action to recover damages for the death of plaintiff's intestate, caused by a collision of the vehicle in which he was riding with one of defendant's trains at a street crossing in Oregon City. The ground of negligence charged in the complaint is that at the time of the collision the train was moving at a greater rate of speed than eight miles an hour, in violation of an ordinance of the city, and without ringing a bell, as required by such ordinance; and the defense is contributory negligence. Upon the issue joined, a trial was had, resulting in a verdict and judgment in favor of plaintiff for the sum of $2,000, and defendant appeals.

In answer to special interrogatories, the jury found that the speed of the train was from 10 to 12 miles an hour, but that just before the accident the bell was being rung. The defendant's negligence in running its train at an unlawful rate of speed must therefore be regarded as an established fact, and the controlling question in the case is whether the court erred in overruling defendant's motion for a nonsuit, on the ground that the evidence showed that the proximate cause of the accident was the negligence of the deceased in approaching the crossing without exercising due caution; for, if such was the fact, the plaintiff cannot recover, notwithstanding the negligence of the defendant. Schofield v. Railway Co., 114 U.S 615, 5 Sup.Ct. 1125; Railway Co. v. Houston, 95 U.S. 697; Railway Co. v. Crisman, 19 Colo. 30, 34 P. 286; Hager v. Southern P. Co., 98 Cal. 309, 33 P. 119; Gothard v. Railroad Co., 67 Ala. 114.

The defendant's track runs north and south through Oregon City, crossing Tenth street at a slight deviation from a right angle 150 feet east of the intersection of such street with Main street. From Main street, along Tenth, to the railway track, the view of an approaching train from either direction is completely obstructed by buildings, except that on the north side, at a point 57 feet from the track, a train can be seen through an opening 2 feet wide when 137 feet from the crossing; and there is also a space of about 15 feet on the same side, between the track and the nearest building, through which the defendant claims a view of the track can be had looking north of from 90 to 157 feet, accordingly as one approaches it, but the plaintiff contends that the view through this space is obstructed by brush and trees. About 11 o'clock on the morning of July 18, 1895, the deceased and his son, a lad 16 or 17 years of age, who were returning home from Oregon City, came down Main street in an ordinary two-seated farm wagon, drawn by two horses, turned into Tenth, and, without stopping to look or listen for an approaching train, attempted to cross the track, when the wagon was struck by a train coming from the north, and the plaintiff's intestate killed. The evidence for the plaintiff tended to show that, at the time the deceased and his son turned into Tenth street, the horses were traveling in a trot, but soon thereafter, the deceased having cautioned his son, who was driving, to look out for the cars, the latter checked them up to a walk when about halfway between Main street and the crossing, and they continued in that gait until the accident; that, as they passed along the street, both the deceased and his son looked through the opening on the north, between the buildings referred to, and listened for an approaching train, but did not see or hear it until it struck the near horse; that they were both familiar with the crossing, and saw the sign there, "Look out for the cars!" and were expecting a train about that time; but it is in proof, and it is admitted, that they did not stop their team to look or listen after turning into Tenth street.

Upon these facts, the question is presented whether the deceased in approaching the crossing, acted with that ordinary care and circumspection which the law requires of a traveler on the highway who is about to cross a railroad track. In ordinary actions, grounded upon negligence, and in which contributory negligence is available as a defense, the general rule is that the plaintiff's conduct is to be measured by that of an ordinarily prudent and cautious person, under the same circumstances, and the question is one of fact for the jury. But, in view of the importance of railway traffic, the character and momentum of trains, and their confinement to a single track, the danger from a collision at a crossing, not only to the traveler on the highway, but to the passengers on board the train, is such that the courts have been compelled to proceed beyond the rule which ordinarily prevails, and prescribe, as a matter of law, the quantum of care required of a traveler about to cross a railway track. "The requirements of the law, moreover," says Mr. Beach, "proceed beyond the featureless generality that one must do his duty in this respect, or must exercise ordinary care under the circumstances. The law defines precisely what the term 'ordinary care under the circumstances' shall mean in these cases. In the progress of the law in this behalf, the question of care at railway crossings as affecting the traveler is no longer, as a rule, a question for the jury. The quantum of care is exactly prescribed as matter of law. In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track. A multitude of decisions of all the courts enforce this reasonable rule. It is also so consonant with right reason and the dictates of ordinary prudence, and so much in line with the ordinary care which the average of mankind display in the daily routine of life, that it should seem to be scarcely dependent upon the authority of decided cases in the law courts. The traveler on the highway must even come to a halt for this purpose; but he is not required to get out of his wagon, and go forward on foot, for the purpose of looking, especially when such a course would not have prevented the collision, but would rather have exposed the traveler to the very peril it was designed to avoid." Beach, Contrib. Neg. (2d Ed.) §§ 180, 181. In harmony with this rule, it is a principle of law, firmly established in this state as elsewhere, that the failure of a person about to cross a railway track on a highway at grade to look and listen for an approaching train is negligence per se, and will bar a recovery for an injury received by a collision with a train at the crossing. Durbin v. Navigation Co., 17 Or. 5, 17 P. 5; McBride v. Railroad Co., 19 Or. 64, 23 P. 814. In Pennsylvania and many other states the rule is pressed further, and it is the imperative duty of the party in all cases, not only to look and listen, but to stop for that purpose at a convenient distance from the track before attempting to go upon it; and, if he suffers injury from a collision with the train, his conduct in failing to stop is negligence per se, and must be so declared by the court. Bailey, Confl.Jud.Dec. p. 263; Railroad Co. v. Beale, 73 Pa.St. 504; Ehrisman v. Railway Co., 150 Pa.St. 180, 24 A. 596; Aiken v. Railroad Co., 130 Pa.St. 380, 18 A. 619. "There never was a more important principle settled," says Mr. Justice Sharswood in Railroad Co. v. Beale, supra, "than that the fact of the failure to stop immediately before crossing a railroad track is not merely evidence of negligence for the jury, but negligence per se, and a question for the court. It was important, not so much to railroad companies, as to the traveling public. Collisions of this character have often resulted in the loss of hundreds of valuable lives of passengers on trains; and they will do so again, if travelers crossing railroads are not taught their simple duty, not to themselves only, but to others. The error of submitting the question to the jury whether, if the deceased had stopped, he could have seen or heard the approaching train, runs through the entire charge and answers of the learned judge below. He should, upon the uncontradicted evidence, have directed a verdict for the defendants." This rule is simple, affords an unvarying standard by which the quantum of care required of the traveler can be determined, and, if observed, accidents at crossings would unquestionably rarely occur. But while there is much force in the argument of Mr. Justice Sharswood in the case referred to, that "the fact of collision shows the necessity there was of stopping," even in cases where the view of the track is unobstructed, it is probable the doctrine having the most support in the decided cases is that it cannot be affirmed as a matter of law, in all cases, that there is a duty on the traveler to stop before attempting to cross. 7 Am. & Eng.Enc.Law (2d Ed.) 430. If the view is unobstructed, so that he can see an approaching train before it reaches the crossing, he has no occasion to listen, and hence it is said there is no reason why he should stop for that purpose; but if the view is obstructed, so that he cannot use the sense of sight, it then becomes his duty to listen, and to listen carefully and attentively; and if there is any noise or confusion over which he has control, either from the vehicle in which he is traveling or otherwise, which may interfere with the sense of hearing, the authorities are quite agreed that it is his duty, as a matter of law,...