Durbin v. Oregon R.R. Co.

• Decision Date: 15 February 1888
• Citation: 17 P. 5,17 Or. 5
• Parties: DURBIN v. OREGON RY. & NAV. Co.
• Court: Oregon Supreme Court

17 P. 5

17 Or. 5

DURBIN v. OREGON RY. & NAV. Co.

Supreme Court of Oregon

February 15, 1888

Appeal from circuit court, Baker county.

Olmstead & Anderson, Dolph Bellinger, and Mallory & Simon for appellant.

Hyde &amp Hyde and A.J. Lawrence, for respondent.

LORD C.J.

This was an action to recover damages for the alleged negligence of the defendant in running a train of cars against the horses hitched to the wagon in which the plaintiff was crossing the defendant's track. At the trial, when the plaintiff rested her case, the defendant moved for a nonsuit which the court overruled, and the defendant excepted. It is enough to say that a verdict was returned for the plaintiff and that the present appeal brings up the judgment rendered thereon and, the record of the proceedings upon the trial. The main contention is confined to error assigned in not granting the motion for a nonsuit. This is claimed upon the ground that from the evidence submitted by the plaintiff it clearly appeared that it was the negligence of the plaintiff which occasioned the collision and caused her injury. The evidence of the plaintiff shows that she and Mrs. Huntington, and a child of the latter, left the town of Huntington with a team and express wagon to visit some friends in the country, and that after they had traveled west a couple of miles or so the west-bound passenger train came along and passed them; that as she left Huntington she saw standing on the track a freight train, headed west, to which engines were attached with steam up, but that after the passenger train had passed she thought nothing more of any trains coming; that, in driving around the point of the hill or mountain through which the railroad is cut, and across which the county road runs diagonally, just as she was crossing the railroad track, and the front feet of the horses had reached the rail, she saw the engine approaching not more than the length of a rail distant; that she tried to back the horses, but that before she could make them back the train struck the horses, killing one, and overturning the wagon. Her testimony also shows that she had traveled over the crossing many times a year, for several years, was familiar with the place and its surroundings, knew the view was obstructed on account of the intervening hill, and regarded the crossing, under the circumstances of its situation, as so dangerous that she had always before stopped and listened, and if she did not hear the train, she, or some companion for her, went forward and looked up the track before venturing to cross it. She says, in reply to the inquiry whether "she had ever taken any pains to find out whether trains were passing," that "I have got down when I was passing along, and tied my horses, and went and looked; and at other times, if any one was with me, I got them to hold the team, and went and looked, or got them to go and look for me," and that she "always regarded it as a dangerous place." "The reason I did not get down and examine the track this time, as I had done before, was that the passenger train had gone by, and I was not expecting any train from Huntington, and I knew it was not time for the helper to go down until the passenger train had got to Weatherby."

It is clear and undisputed that neither the plaintiff or Mrs Huntington listened on approaching the crossing to find out whether a train was coming, notwithstanding they knew the view of the track was obstructed, and that the crossing, by reason of the nature of the cut, and the location of the county road across it, was more than ordinarily dangerous, but drove directly on the track without thinking anything about it, or observing the usual precautions required for safety, because the passenger train had passed them, and the plaintiff did not think any other train was coming. There is no doubt if she had listened she could have heard the approaching train, and avoided the accident. But it is sought to discriminate this case from the general rule applied to travelers in approaching railroad crossings, and to excuse the failure or neglect of the plaintiff to listen, on the ground that the evidence showed that she knew the time of the running of the trains, and, as the passenger train had passed them, she knew no other train would be due for some time; and consequently the fact whether her failure to listen, under the circumstances, was such contributory negligence as should defeat her recovery, was for the jury to decide. The law assumes that there is danger at railroad crossings, which to avoid requires the exercise of care and prudence commensurate with the nature of the place or risk involved. It is laid down by the courts and text-writers, when one approaches a point upon the highway, crossed by a railway track, it is his duty, whether on foot or in a wagon, to exercise a care for his own safety, and especially to look and listen before attempting to cross it. "The rule is well established," said MILLER, J., "that it is the bounden duty of a traveler approaching a railroad crossing, before he passes the same, to exercise a proper degree of care and caution, and to make a vigilant use of his eyes and ears, for the purpose of ascertaining whether a train is approaching; and if, by a proper use of his faculties he could have discovered the train and escaped injury, and fails to do so, he is chargeable with contributory negligence, and no recovery can be had." Salter v. Railroad Co., 75 N.Y. 273. "He must assume," says Mr. Beach, "that there is danger, and act with ordinary prudence and circumspection upon the assumption. The requirements of the law, moreover, 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 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 courts enforce this reasonable rule." Beach, Contrib. Neg. § 63, and authorities cited in note, and also section 9. Now, will the fact that a train is behind time relieve the traveler of the duty of care and caution? Railroad companies have the right to run trains at all times, and those having occasion to cross their tracks are entitled to no exemption from care and vigilance because trains are irregular or extra trains are put on. "Assume in this case," said HARRIS, J., "that it was negligence in the railroad company to be behind time, and will this, in law, excuse the defendant from observing care on his part? In my opinion it will not. Such a rule would be extremely dangerous, and there would be much difficulty in its application. It may be that those who live in the immediate vicinity of railroads, and who frequently cross them, may, when they suppose a train has just passed, be less careful, and this may grow into a habit; or they may consult time-tables, and from them reason that there can be no locomotive near, and act without regard to care; but if they do so, in my opinion they act at their peril. They will be charged with negligence in case they rush on the track without looking, or trying in a proper way to ascertain the fact whether danger is near; and they will not be permitted to recover damages for any injury they sustain." Dascomb v. Railroad Co., 27 Barb. 226. So that it seems that...