Conn v. Oregon Elec. Ry. Co.

• Decision Date: 16 June 1931
• Citation: 300 P. 342,137 Or. 75
• Parties: CONN v. OREGON ELECTRIC RY. CO. [a1]
• Court: Oregon Supreme Court

300 P. 342

137 Or. 75

CONN v. OREGON ELECTRIC RY. CO. ^[a1]

Supreme Court of Oregon

June 16, 1931

Department 2.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Action by Vachel C. Conn against the Oregon Electric Railway Company. From the judgment, defendant appeals.

Judgment reversed, and action dismissed.

This is an action for damages, arising out of personal injuries inflicted upon the body of the plaintiff at about 5 o'clock p. m. on May 23, 1928, by a north-bound train owned and operated by the defendant corporation, while plaintiff was driving his automobile in a westerly direction across the track of the defendant where it intersects with the highway at a point about 300 feet south of Garden Home.

The plaintiff alleged that the highway that crossed the railroad track at this point was traveled by numerous automobiles and other conveyances, and that, by reason of that fact, the defendant railroad company owed a duty to the plaintiff to maintain, at or near the crossing, a warning bell, or other signal and device, to give notice and warning to the plaintiff and to the traveling public over the highway of the approach of defendant's trains toward the crossing; that the defendant owed a duty to the plaintiff and to the public of maintaining a sufficient notice at or near the crossing warning all persons traveling over the highway of the existence of its tracks and roadbed, and the duty of giving them timely notice and warning of the approach to the crossing of its trains by blowing a whistle and ringing a bell, and the further duty to keep a lookout on and over any of defendant's trains approaching the crossing for the approach of travelers over and across it; that, in disregard of its duty, defendant negligently failed to maintain and provide a warning bell or other device at or near the crossing, and negligently and recklessly failed to give warning of the approach of its train to the crossing, and to keep a lookout for the approach of plaintiff or other travelers upon the highway towards the crossing; that, as a result of such failure and negligence, defendant's train collided with the automobile of the plaintiff at the crossing as hereinbefore stated, seriously and permanently injuring the plaintiff, to his damage in the sum of $50,000, and damaging his automobile in the sum of $750. Plaintiff further alleged that, by reason of his personal injuries, he was required to remain in a hospital for 87 days, where he incurred an obligation in the amount of $329.15, and further, to incur an indebtedness for medical and surgical attention in the sum of $850.

The defendant, answering, admitted the accident and the resultant personal injuries and property damage, but denied all alleged negligence, carelessness, or recklessness on its part, and further denied that the road which crosses defendant's track immediately south of Garden Home is a main public road. It admitted that no crossing bell was maintained at that crossing, but alleged that frequent warnings by blowing the train whistle and ringing the bell were given to plaintiff of the approach of defendant's train at the time of the accident.

For a further and separate defense, defendant alleged that plaintiff's negligence caused, or contributed to cause the accident which resulted in his injuries and in the damage to his automobile. It averred that the presence of the railroad track was obvious to a traveler on the highway approaching the crossing, by reason of the existence in plain view of a railroad crossing sign warning of the crossing, and by reason of the railroad station, railroad trestle, railroad embankment, rails, and the overhead electric equipment and poles supporting such equipment, but that, despite this fact the plaintiff negligently failed to observe the existence of such structures, and, in utter disregard of his own safety drove his automobile on the crossing in front of the advancing train; that, before driving upon the track, the plaintiff had an opportunity to see the approaching train, and that it was his duty, before proceeding, to stop, look, and listen for approaching trains; that, in disregard of his duty, he approached the track at a fast rate of speed, without stopping or slowing down, and without taking any steps to ascertain whether or not a train was approaching, and without making any effort to have his automobile under control in order that he could bring it to a stop in the event a train was approaching; that, "immediately before plaintiff drove his automobile upon the railway track, the defendant's train was in plain view approaching from the south, but the plaintiff nevertheless proceeded negligently and carelessly to drive upon the track and the collision resulted, and the said negligent acts on the part of the plaintiff in failing to observe the condition of the highway over which he was traveling, and in failing to observe the approach of defendant's train, proximately caused the accident, or contributed to cause the accident, in which he was injured and in which his automobile was damaged."

For a second separate answer and defense, the defendant pleaded former adjudication, alleging, among other things, that, prior to bringing the action in the instant case, the plaintiff had brought an action against defendant "in this court," bearing the same title as the case under consideration, alleging "exactly the same acts of negligence of defendant as are here alleged, and for the precise injuries to person and damage to property and other damages which are the basis of plaintiff's present action"; that issue was joined and the case brought on for trial; that, at the close of plaintiff's case, defendant moved for a judgment of nonsuit against the plaintiff, which motion was temporarily denied; that defendant thereupon presented all of its evidence and rested, and plaintiff called witnesses in rebuttal and rested; that defendant then moved the court for a directed verdict in its favor; that, after consideration of this motion, the court granted defendant's motion theretofore made for a nonsuit, and judgment of nonsuit was thereafter entered in the records of the court. The defendant asserts that this judgment renders the plaintiff's cause res adjudicata and is a bar to the present action.

The plaintiff demurred to the defendant's second separate answer and defense, on the ground that it failed to state facts sufficient to constitute a defense to plaintiff's cause of action. The demurrer was sustained. Plaintiff then replied to the new matter stated in the answer, and, as a result of the trial, recovered a verdict for $7,500. From the judgment entered thereon, the defendant appeals.

Fletcher Rockwood, of Portland (Charles A. Hart and Carey & Kerr, all of Portland, on the brief), for appellant.

Leo J. Hanley, of Portland (Prescott W. Cookingham, of Portland, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

The first assignment of error relates to the ruling of the court on plaintiff's demurrer to defendant's second separate answer and defense, wherein the judgment of the trial court in a former action was pleaded as a bar.

Turning to our Code, we read: "A judgment of nonsuit may be given against the plaintiff * * * on motion of the defendant * * * when, upon the trial the plaintiff fails to prove a cause sufficient to be submitted to the jury." Or. Code, 1930, § 2-1001. It further provides: "When a judgment of nonsuit is given, the action is dismissed; but such judgment shall not have the effect to bar another action for the same cause." Cr. Code, 1930, § 2-1004.

It is obvious from the record that the judgment invoked by the defendant is not such a judgment as would constitute a bar to the prosecution of this action. By defendant's own pleading we learn that "judgment of nonsuit was entered by the court," and, as to the effect of that judgment, our Code governs. It says, in plain language, that "such judgment shall not have the effect to bar another action for the same cause." See, also, Carroll v. Grande Bonde Electric Co., 49 Or. 477, 90 P. 903. For a valuable exposition of this question, see Coit v. Beard, 33 Barb. (N. Y.) 357.

The defendant next assigns error of the court in denying its motion for a directed verdict in its favor, and invokes the muchannounced general rule that a person who drives an automobile upon a grade crossing without looking or listening for an on-coming train is guilty of contributory negligence as a matter of law, citing, in support thereof, the following cases: Long v. P. Ry. & Nav. Co., 74 Or. 502, 144 P. 462, 145 P. 1068, L. R. A. 1915F, 1151; Cathcart v. Oregon-W. R. & N. Co., 86 Or. 250, 168 P. 308; Robison v. Oregon-W. R. & N. Co., 90 Or. 490, 176 P. 594; Olds v. Hines, 95 Or. 580, 187 P. 586, 188 P. 716; Morser v. Southern P. Co., 110 Or. 9, 222 P. 736; Id., 124 Or. 384, 262 P. 252. To these authorities, we add the case of Gomulkiewicz v. Spokane, P. & S. R. Co., 131 Or. 175 (and collection of Oregon cases on page 178), 281 P. 851, 852.

The plaintiff admits the general rule as declared above, but contends that this rule has no application where the railroad is not disclosed to view, and cites numerous authorities in support of his contention. He contends that the cause at issue comes under an exception to the rule, which, in substance is that a traveler about to cross a railroad track upon a public crossing is not guilty of contributory negligence for failing to take precautions against a danger not open to observation, and of which he is ignorant. Chicago, R.I. & P. Ry. Co. v. Hansen, 78 Kan. 278, 96 P. 668.

We will here review a few of the many additional cases we have read wherein the traveler is held guiltless of contributory...