Burroughs v. Southern Pac. Co.

• Decision Date: 28 April 1936
• Citation: 56 P.2d 1145,153 Or. 431
• Parties: BURROUGHS v. SOUTHERN PAC. CO. et al.
• Court: Oregon Supreme Court

56 P.2d 1145

153 Or. 431

BURROUGHS v. SOUTHERN PAC. CO. et al.

Supreme Court of Oregon

April 28, 1936

Department 1.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by J. M. Burroughs against the Southern Pacific Company and another. From an adverse judgment, the plaintiff appeals.

Affirmed in part, and reversed and remanded in part.

Robert A. Bennett and Lamar Tooze, both of Portland (R. A. Bennett and Jaureguy & Tooze, all of Portland, on the brief), for appellant.

Clarence J. Young, of Portland (Alfred A. Hampson and Clarence J Young, both of Portland, on the brief), for respondent Southern Pac. Co.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for respondent Inman-Poulsen Lumber Co.

BELT Justice.

This is an action to recover damages for injury to person and property caused by a collision between an automobile driven by plaintiff and a locomotive owned and operated by the defendant Southern Pacific Company. The defendant Inman-Poulsen Lumber Company maintained the spur track on which the locomotive was running. At the conclusion of plaintiff's case in chief the trial court allowed the motion of each of the defendants for a judgment of involuntary nonsuit. The plaintiff appeals.

The vital question is whether the plaintiff is guilty of contributory negligence as a matter of law. Such question requires a statement of the facts in the light most favorable to plaintiff. Plaintiff is entitled to rely upon every reasonable inference that can be drawn from the evidence. It is only when every reasonable-minded person would conclude from the evidence that plaintiff failed to exercise due care to avoid injury that a court should so declare as a matter of law. If the facts present a case where fair-minded persons might differ in their conclusions on such question, the issue of contributory negligence is a matter for the determination of the jury. The conduct of the plaintiff must be measured by the degree of care which an ordinarily prudent person would have exercised under similar circumstances. It is also fundamental that the degree of care required is commensurate with the danger involved. The difficulty lies, not in the statement of the law, but rather in its application.

The accident occurred about midnight on September 7, 1934, at the intersection of S.E. Grand avenue and S.E. Caruthers street in the city of Portland. S.E. Grand avenue extends in a northerly and southerly direction, and S.E. Caruthers street intersects it at a right angle. There are two street car tracks on Grand avenue and it is 36 feet in width from curb to curb. Caruthers street runs east and west and it is 31 feet in width from curb to curb. At the time of the collision the plaintiff was driving south on the right side of Grand avenue at a speed of 15 to 18 miles an hour. He says that, immediately before the impact, he slowed down to a speed of from 8 to 10 miles an hour. The switch engine was moving in an easterly direction on the spur track on Caruthers street. After the collision at a point a few feet west of the center of the street intersection, the engine and automobile moved a distance of only 6 or 7 feet. We infer from such evidence, and from the fact that the locomotive had traveled only 200 feet before the collision occurred, that it was proceeding at a low rate of speed.

On the left of plaintiff there was a long woodpile varying from 9.2 feet to 14 feet in height, extending parallel to the east curb line of Grand avenue and to a point 28.8 feet north of the spur track. On plaintiff's right his view was obstructed by the office building of the Inman-Poulsen Lumber Company. This building is 35 feet wide and fronts on Grand avenue. It is approximately 31 feet from the north rail of the spur track, and is 36 feet 4 inches from the west curb line of Grand avenue.

There is evidence tending to show that the traffic is heavy over Grand avenue and that no watchman or traffic signal device is maintained at the street intersection. Neither was there any brakeman with lighted lantern to signal the approach of the engine. It is well established, however, by the plaintiff's own testimony that he was thoroughly familiar with the situation, as he had crossed over this street intersection twice daily for about two years. He was employed as a night watchman for the Kerr Gifford Company, and it was his custom, after quitting work at midnight, to drive down Grand avenue toward his home about ten blocks south of the intersection in question. In view of this evidence it cannot reasonably be contended that the plaintiff relied upon any traffic signal device or watchman, although it may be that, had such been maintained, the collision would not have occurred.

The evidence further tends to show that the headlight on the engine was not burning, nor was there any sound of whistle or bell as the engine approached the street crossing. The night, however, was clear and an arc light was burning on the northeast corner of the street intersection. This light was hung about 25 feet above the street on an arm which extended out within a few feet of the center of the intersection.

Plaintiff was an experienced driver, 69 years of age, with normal sight and hearing. He had observed the switching operations of the defendant railroad company on this spur track on an "average of once or twice a week." The plaintiff thus testified as to how the accident occurred: "A. Well, I was going home from the mill and I was driving south on Grand Avenue, and I slowed to 15 or 18 miles an hour, and I looked to my right and there was no object in sight, and no engine, and I listened and there was absolutely no bell and no light on that engine. I did not see anything at all until I looked to my left and by the time I got my eyes onto my car and going, the engine was onto me. No bell whatever."

In the brief of respondent Southern Pacific Company the distance that a person could see west on the spur track from various points on Grand avenue is stressed, but all of these distances are based on daylight observations. It will be recalled that the collision in the instant case occurred at night. Needless to say, the distance a person could see in daylight is no criterion for estimating his vision at night. Lindekugel v. Spokane, P. & S. Ry. Co., 149 Or. 634, 42 P.2d 907, 99 A.L.R. 721. Nice calculations made in the quietude of the office, after an accident has occurred, may be persuasive in determining whether due care has been exercised, but ordinarily negligence cannot thus be established as a matter of law. It is comparatively easy, in the light of subsequent events, to say that an accident could have been avoided if the parties involved had done this or that thing, but the law does not apply such a rigid test. Santoro v. Brooks, 121 Or. 424, 254 P. 1019.

As a general rule this court, in railroad crossing cases, has denied recovery on account of contributory negligence. It is only in rare cases that the evidence has justified submission of the cause to the jury. In Lindekugel v. Spokane, P. &amp S. Ry. Co., supra, and Kirby v. S. P. Co., 108 Or. 290, 216 P. 735, verdicts were sustained. In those cases, however, the evidence showed certain conditions which might tend to divert from impending danger the attention of ordinarily prudent persons. In the case first cited an automatic wigwag signal was involved. It had been disconnected the day before the accident. Lindekugel, who lived near the track and was accustomed to the operation of the automatic signal, was injured while driving his automobile across the track in the nighttime. There was evidence to the effect that the disconnection of this electric signal tended to lull the plaintiff therein into a false sense of security. ...