Christensen v. Willamette Valley Ry. Co.

• Decision Date: 07 June 1932
• Citation: 11 P.2d 1060,139 Or. 666
• Parties: CHRISTENSEN v. WILLAMETTE VALLEY RY. CO.
• Court: Oregon Supreme Court

11 P.2d 1060

139 Or. 666

CHRISTENSEN v. WILLAMETTE VALLEY RY. CO.

Supreme Court of Oregon

June 7, 1932

Department 2.

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

Action by Christian Christensen against the Willamette Valley Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Clarence D. Phillips, of Portland (Griffith, Peck & Coke, of Portland on the brief), for appellant.

John R Latourette, of Portland (Latourette & Latourette, of Portland, on the brief), for respondent.

BELT J.

This is an action to recover damages for injuries resulting from a collision between an automobile and a mixed interurban electric train owned and operated by the defendant company.

The gist of plaintiff's action is thus alleged in the complaint:

"III. On or about December 20th, 1930, at the hour of about 5:30 P. M., on a dark night, the plaintiff was proceeding in his automobile on the Beaver Creek Highway in a Northwesterly direction toward Oregon City. At said time the defendant was operating on schedule its regular passenger motor car on its said railroad, which was traveling in a Southeasterly direction from Oregon City to Molalla at or near Robbins Station. Said passenger car which was then carrying passengers, was operated by a motorman on the front end thereof, and was lighted with electric lights within, and had the customary red and green lights on the rear of said car, which were lighted. *** Attached to and on the rear of said passenger car, the defendant, at said time and place, was hauling five of said empty log trucks. There was not a green or red light or any kind of light whatsoever on any of said log trucks, neither was there a brakeman or signal of any kind whatsoever to indicate to the plaintiff or to the traveling public the presence of said log trucks on the rear of said passenger car.

"IV. As the plaintiff was proceeding in his automobile aforesaid, he saw said passenger car approaching at a considerable distance and saw the green and red light upon the rear end of said passenger car, but did not see and was unable to see the said log trucks. As plaintiff approached said crossing, he brought his automobile to a complete stop, at a reasonable and safe distance from said railroad track at said crossing. After said passenger car had proceeded over said crossing the plaintiff, not knowing of the presence of said log trucks, proceeded on his way and while so proceeding and when within a short distance of said railroad track his lights reflected upon and he saw the beam or connecting rod of one of said trucks. Immediately plaintiff put on his brakes and brought his car to a stop before reaching said railroad track but within such close proximity that the rear bunk and axle of said log truck struck the front end of plaintiff's automobile, throwing the plaintiff and his automobile back and to one side of the road a distance of about thirty- four feet, throwing plaintiff against the steering wheel, against the door and other parts of his said automobile, causing him serious, painful and permanent injuries as hereinafter alleged.

"V. The defendant was careless and negligent in failing to have a green and red light upon the rear end of said train and failing to have any light whatsoever upon any of said log trucks, in having a green and red light upon the rear of said passenger coach, in failing to give the plaintiff and the public any warning whatsoever of the presence of said log trucks attached to said passenger car and in operating said passenger car and said log trucks in the manner and at the time and place aforesaid."

The defendant denied any negligence on its part and affirmatively alleged:

"II. That on December 20, 1930, at the hour of 5:10 P. M., the defendant was lawfully, carefully and prudently operating its interurban railway train, which was a mixed passenger and freight train, in a Southerly direction over and across the Beaver Creek Highway at said Robbins Station; that while said train was being operated as aforesaid, by said defendant, and when the said train was upon said intersection, the plaintiff attempted to drive his automobile over and across said intersection, and recklessly, carelessly and negligently drove and operated his automobile into collision with a logging car which was one of the cars of said train; that as a result of said collision the plaintiff claims that he suffered some injury, but this defendant has no knowledge or information sufficient to form a belief as to the extent of said injuries, and for that reason this defendant denies that the plaintiff was thereby injured to any extent, or at all, and demands the proof thereof.

"III. That at the time and place of said...