Emmons v. Southern P. Co.

• Decision Date: 13 July 1920
• Citation: 191 P. 333,97 Or. 263
• Parties: EMMONS v. SOUTHERN PAC. CO. ET AL.
• Court: Oregon Supreme Court

191 P. 333

97 Or. 263

EMMONS v. SOUTHERN PAC. CO. ET AL.

Supreme Court of Oregon

July 13, 1920

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by Oma Emmons against the Southern Pacific Company and another. Judgment for plaintiff against named defendant, and named defendant appeals. Reversed.

The plaintiff instituted this action against the Southern Pacific Company, a Kentucky corporation, and its motorman, Jesse Woodson, who resides in Oregon. She claims to have been injured by a collision of one of the defendant's trains with an automobile which she was driving, accompanied by her brother, in the town of Beaverton in this state. She alleges that at the time of the accident the defendant Woodson, as the employé of the defendant company, was the motorman in charge of its train causing the injury, and that the accident happened where the railway track running in an easterly direction crosses a public road known as the Portland-Hillsboro road. According to the complaint, this passageway is used each day by pedestrians, wagons, bicycles automobiles, and other vehicles, and on the day of the accident the plaintiff was driving the automobile mentioned in a southerly direction and across the track at that point. The charging part of the complaint reads thus:

"That on the 3d day of August, 1916, at the hour of 7 p. m. the automobile which the plaintiff was carefully and cautiously driving became stalled upon the defendant's railway track just west of the depot at Beaverton, Or. That after the defendants saw the said automobile standing on the said crossing and while the automobile was so stalled on the defendant's railway track, an electric train owned and operated by the said defendants approached from the west at a rate of speed prohibited by ordinance No. 25 of the said town of Beaverton, Or., and at a rate of speed in excess of eight miles per hour, and said train came down upon and struck the plaintiff and the automobile in which plaintiff was seated. That the time after the defendants saw said automobile standing on the said crossing was ample in which to stop said train before it struck said automobile. That defendants carelessly and negligently and recklessly operated said train in a careless, negligent, and reckless manner upon said main line railroad, at a speed greatly exceeding a safe speed at that time and place. That defendant and defendant's employés carelessly and negligently allowed and permitted the said train to run through the said town at a rate of speed prohibited by the ordinances of the said town of Beaverton and at a rate of speed in excess of eight miles per hour. That defendants carelessly and negligently and recklessly failed to control or stop said train after the motorman who was operating said train and who was in charge thereof saw and knew, or with the exercise of due care and caution could have known and seen, said automobile standing upon said railway track on the crossing ahead of said train; there being ample time within which said train could have been stopped and a collision with the plaintiff prevented. That defendants carelessly and negligently and recklessly, after the motorman who was operating said train saw and knew, or with the exercise of due care and caution could have known and seen, said automobile standing upon the said railway track on the crossing ahead of said train, carelessly and negligently allowed and permitted said train to violently strike and collide with the said automobile in which plaintiff was riding and the plaintiff, thereby throwing the said automobile and plaintiff off of the track without any fault of the plaintiff, causing her to be seriously and permanently injured."

The complaint also contains allegations descriptive of the injuries which plaintiff received, and averments of her damages.

The answer traverses the allegations of the complaint already quoted, and particularly its averments respecting Ordinance No. 25 of the town of Beaverton, regulating the speed of vehicles. It admits the corporate character of the town and the location of the railway track and its crossing of the Portland-Hillsboro road at grade in Beaverton, and that the plaintiff at the time and place mentioned in her complaint was driving an automobile in a southerly direction on the road and across the track near the defendant company's station at Beaverton. The answer joins issue with the complaint on other matters not necessary to detail. Affirmatively, defendant's pleading states, in substance that at the time and place mentioned in the complaint the defendant company's train, while approaching the station at Beaverton and operated in a careful manner, struck the automobile driven by the plaintiff. It charges that the collision and consequent injury to the plaintiff, if any were the result of her own carelessness and negligence in operating the automobile and in failing to stop it at a safe distance from the track, although she had a full and unobstructed view of the track and the approaching train; that she slowed down her car as she approached the track until it stopped, or its motion was barely perceptible, and then suddenly, in disregard of the whistle and ringing of the bell on the train, started the automobile forward, and then stopped it on the track immediately before the train, so that the collision was inevitable, notwithstanding the defendants used every means possible to stop and prevent the collision; and that the same was the accident described in plaintiff's complaint.

A further defense sets out the corporate character of the town of Beaverton, the passage by its town council of Ordinance No. 11, regulating the enactment and taking effect of ordinances, and the attempted passage of Ordinance No. 25, regulating the speed of vehicles in the town; and charges that by reason of certain alleged defects in the passage of the latter ordinance it is null and void. Under this head it is specified that Ordinance No. 25 was introduced, read three times, and passed all at the same meeting of the council on August 5, 1912, without vote, consent, or authorization by the council allowing the third reading or posting of the said ordinance, and without any first or third or any reading of said ordinance by sections, and that the certificate of the town recorder does not specify in what particular public places said Ordinance No. 25 was posted. The answer is challenged by the reply in material particulars.

The cause was submitted to the jury, which returned the following verdict on February 8, 1919:

"In the Circuit Court of the State of Oregon for Multnomah County. Oma Emmons, Plaintiff, v. Southern Pacific Co., Defendant. Verdict. We, the jury, having been first impaneled and duly sworn and truly to try the above-entitled cause, find for the plaintiff and assess the amount of damages at $5,000."

This was signed by the foreman and ten other jurors. The court discharged the jury, and entered judgment against the Southern Pacific Company alone, for the amount of the verdict. A cost bill was filed, and certain objections were made by the company to the same. This defendant within the time allowed by the court filed a motion for a new trial on the following grounds:

"(1) The admission in evidence of Ordinance No. 25, of the town of Beaverton, Or., relating to the regulations of speed in said town; and

"(2) Submitting to the jury a prior negligence of the defendant in running at excessive speed, under the ordinance of said town of Beaverton, under the doctrine of the last clear chance."

For want of time to hear unfinished business, the cause was continued until the following term, at which time the defendant company moved for leave to file an amended motion for a new trial, urging the following grounds in addition to those already mentioned:

"(3) In the execution and reception of an alleged verdict, purporting to be against the Southern Pacific Company, a corporation, alone, in that:

"(a) Said alleged verdict is ambiguous, uncertain and void; and

"(b) Said alleged verdict purports to bind the Southern Pacific Company, a corporation, and does exonerate Jesse Woodson, employé and codefendant with said Southern Pacific Company, a corporation, upon whose negligence the defendant Southern Pacific Company could only be held liable."

The company also moved at the same time to vacate the judgment rendered against it on the verdict already quoted, and to enter a judgment in its favor and against the plaintiff, for the reason that the verdict exonerated the defendant Woodson, on whose negligence alone the defendant company could be held, and that the company cannot be held liable when its employé is exonerated from negligence by the verdict.

The defendant Woodson, appearing separately, moved for judgment in his favor against the plaintiff, on the ground that the verdict is not against him, but in his favor. The court denied all of the motions mentioned, and directed the judgment to stand as originally entered against the Southern Pacific Company, after making certain modifications in the cost bill filed by the plaintiff. The company alone appeals.

R. C. Nelson, of Portland (A. C. Spencer and Robert R. Rankin, both of Portland, on the brief), for appellant.

Chester A. Sheppard and Norman S. Richards, both of Portland (Richards & Richards, of Portland, on the brief), for respondent.

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

Apparently there was an attempt in the complaint to state a cause of action for negligence of the defendants, and another count for injury inflicted in violation of what is known as the last clear chance doctrine. No motion to require the plaintiff to elect between these two different phases in her...