Doty v. Southern Pacific Co.

• Decision Date: 07 June 1949
• Citation: 186 Or. 308,207 P.2d 131
• Parties: DOTY <I>v.</I> SOUTHERN PACIFIC CO.
• Court: Oregon Supreme Court

186 Or. 308

207 P.2d 131

DOTYv.

SOUTHERN PACIFIC CO.

Supreme Court of Oregon.

Argued January 18, 1949.

Affirmed June 7, 1949.

Appeal and error — Motions for directed verdict and judgment notwithstanding verdict

1. On appeal from judgment on jury's verdict for plaintiff in tort action, questions, raised in circuit court by defendant's motions for directed verdict and judgment notwithstanding verdict, as to whether there was substantial evidence of defendant's negligence and whether plaintiff was contributorily negligent as matter of law, must be resolved on consideration of all evidence and reasonable inferences therefrom in light most favorable to plaintiff, who is entitled to benefit, not only of her own testimony, but of any evidence favorable to her introduced by defendant.

Railroads — Evidence sufficient to take to jury question of negligence

2. Evidence was sufficient to take to jury question of railroad company's negligence, proximately causing collision between its passenger train and automobile at unusually hazardous city street crossing, in failing to maintain gates, flagman, or warning signal thereat.

Railroads — Travel extremely light — Hazardous crossing

3. The mere fact that amount of travel over unusually hazardous city street and railway crossing was extremely light at time of collision between automobile and train thereat would not remove crossing from such hazardous category.

Negligence — Contributory negligence — Affirmative defense — Plead and prove

4. Contributory negligence is affirmative defense, which must be pleaded and proved by defendant, unless it conclusively appears from testimony adduced by plaintiff.

Railroads — Presumption of due care

5. One suing railroad company for damages sustained in collision between automobile driven by plaintiff and defendant's train at street crossing of defendant's tracks is presumed to have exercised due care in crossing tracks, in absence of evidence on that subject, and is not required to prove that she was not negligent.

Negligence — Never presumed

6. Negligence is never presumed.

Railroads — Burden on defendant to prove plaintiff didn't listen for train

7. In action for damages sustained in collision between automobile driven by plaintiff and defendant railroad company's train at street crossing of defendant's tracks, burden of proving that

plaintiff did not listen for train, as defendant asserted, was on defendant as part of its defense, and plaintiff was not bound to prove that she did listen.

Railroads — Whether plaintiff listened for train was jury question

8. Whether driver of automobile, struck by train at street crossing of railroad company's main line track, listened for train before going on such track, was question for jury, in view of her testimony that she heard nothing as she passed scale track and presumption that she did her duty.

Railroads — Contributory negligence — Jury question

9. Whether motorist, failing to see or hear train in time to avoid collision therewith at railway crossing, was contributorily negligent, in question for jury, unless such failure was negligence so obvious and certain that only one conclusion is permissible for rational and candid minds.

Negligence — Ordinary care — Jury question — Reasonable prudent men under similar state of affairs

10. Questions of ordinary care, reasonable prudence, etc., are for jury to determine under proper instructions from court, and it is their province to note special circumstances and surroundings of particular case and then say whether parties' conduct was such as would be expected of reasonable prudent men under similar state of affairs.

Negligence — Jury question or question for court

11. When facts are such that reasonable men may fairly differ on question whether there was negligence, determination thereof is for jury, and negligence is question of law for court only where facts are such that all reasonable men must draw same conclusion therefrom.

Railroads — Crossing — Inherently dangerous

12. A railroad crossing is inherently dangerous place, at which traveler is bound to exercise care commensurate with known hazards and depending on circumstances of case.

Railroads — Injured person not contributorily negligent as matter of law in this case

13. A driver of automobile, struck by railroad train on main line track at street crossing, was not contributorily negligent, as matter of law, in failing to stop on passing track before reaching main track, where railroad company admitted that switch engine was standing on passing track and there was other evidence of presence of one or more box cars between such engine and street.

Railroads — Conflict of testimony for jury to resolve

14. Conflict between railroad train fireman's testimony and that of engineer and other evidence as to engines' distance from

street crossing when fireman told engineer to stop after seeing motorist approaching crossing was for jury, not court, to resolve.

Railroads — Contributory negligence — Question for jury

15. Whether driver of automobile, struck by train at street crossing of railroad's main line track, was contributorily negligent in failing to stop automobile, get out and reconnoitre before reaching track, driving at excessive speed, or failing to hear train whistle or bell, was question for jury.

                  See 60 A.L.R., 1096
                  44 Am. Jur., 764
                  52 C.J., Railroads, § 2067
                

Appeal from Circuit Court, Josephine County.

H.K. HANNA, Judge.

John Gordon Gearin argued the cause for appellant. With him on the brief were Koerner, Young, Swett & McColloch, all of Portland.

Frank J. Van Dyke, of Medford, and Samuel M. Bowe, of Grants Pass, argued the cause for respondent. With them on the brief was Ben T. Lombard, of Medford.

Before LUSK, Chief Justice, and BRAND, BELT, ROSSMAN, BAILEY and HAY, Justices.

Action by Peggy L. Doty against the Southern Pacific Company, a corporation and others, for damages sustained in a collision between an automobile driven by plaintiff and defendant's passenger train at a street crossing of defendant's tracks. From a judgment for plaintiff against named defendant, it appeals.

AFFIRMED.

BAILEY, J.

This action arose out of a collision between an automobile driven by plaintiff, Peggy L. Doty, and a passenger train operated by defendant, Southern Pacific Company, where Sixth Street intersects the main line track of the railroad company in Grants Pass, Oregon, on November 28, 1945. Joined with the Southern Pacific Company, as defendants, were J.O. Eifert and G.P. Burnett, engineer and conductor, respectively, of the train involved in the mishap. At the close of plaintiff's evidence, judgment of involuntary nonsuit was entered in favor of the individual defendants. From a judgment in favor of the plaintiff and against the defendant railroad company, the latter has appealed.

Sixth Street in the City of Grants Pass extends in a northerly and southerly direction; it is level and is 55 feet wide. On each side of Sixth Street there is a sidewalk, approximately 12 feet wide. The street is intersected at right angles, within a distance of 120 feet, by six tracks of the defendant company. Commencing with the northernmost track and proceeding southerly they are designated in the evidence as the team track, No. 2 track, No. 1 track, the scale track, the passing track, and the main line track. The distance between the south rail of the team track and the north rail of No. 2 track is approximately 8 feet; between the south rail of No. 2 track and the north rail of No. 1 track, approximately 40 feet; between the south rail of No. 1 track and the north rail of the scale track, approximately 20 feet; between the south rail of the scale track and the north rail of the passing track, 8.4 feet; and between the south rail of the passing track and the north rail of the main line track, 13.7 feet. Plaintiff was proceeding southerly on Sixth Street in her automobile when she was struck by the locomotive of a passenger train which was proceeding easterly on the main line track.

Plaintiff alleges in her complaint that at the time of the accident a Southern Pacific railroad engine was parked on a side track "just east of said Sixth Street" and was emitting smoke and steam and making considerable noise, and that a strong light from the engine was shining across Sixth Street. The complaint further alleges that "at said time and place there were parked on a sidetrack of said railroad, paralleling and lying directly north of the said main line track, a number of box cars belonging to said defendant railroad company, which said box cars were parked immediately west of the place where said main line track and said Sixth Street intersected, and that said box cars and said parked railroad engine with its noise, smoke, steam and strong light greatly limited the visibility and sensory capacities on the occasion herein referred to, which condition constituted an unusual hazard, and that the aforesaid facts were well known to defendants, and each of them."

Plaintiff charges the defendant with the following acts of negligence: (1) Failure and neglect to provide and maintain any warning signal, by mechanical device or otherwise; (2) failure to provide a watchman; (3) failure to warn plaintiff of the approaching train, knowing that an unusually dangerous situation existed at the crossing; (4) failure to give any warning by whistle, bell, or other device; and (5) failure and negligence to reduce the speed of the train and thereby avert said collision, after seeing that a collision was imminent and having an opportunity to realize and appreciate plaintiff's danger.

The railroad company and the individual defendants, Eifert and Burnett, filed a joint answer denying any negligence. In an affirmative answer and defense they allege that plaintiff was negligent in that (1) she failed to stop, look or listen before crossing the track when she knew, or in the exercise of...