Fish v. Southern Pacific Co.

• Decision Date: 07 December 1943
• Citation: 173 Or. 294,145 P.2d 991,143 P.2d 917
• Parties: FISH <I>v.</I> SOUTHERN PACIFIC CO.
• Court: Oregon Supreme Court

173 Or. 294

143 P.2d 917

145 P.2d 991

FISHv.

SOUTHERN PACIFIC CO.

Supreme Court of Oregon.

Argued October 13, 1943.

Affirmed December 7, 1943.

Rehearing denied February 1, 1944.

Appeal and error

1. In considering rules denying defendant's motions for directed verdict, and for judgment notwithstanding verdict for plaintiff, the motions admitted plaintiff's evidence and every inference of fact that might be drawn therefrom, and the evidence was interpreted in the light most favorable to plaintiff.

Appeal and error

2. Where the evidence conflicts, reviewing court may not infringe upon the function of the jury by seeking to weigh the evidence but is concerned only with question whether there was substantial evidence to carry the case to the jury and support the verdict.

Railroads

3. Fact that approaching motorist's view in direction from which train was approaching grade crossing was solidly obstructed did not of itself make the crossing an unusual hazard so as to require railroad to maintain a mechanical signal, warning device, or watchman at the crossing.

Railroads

4. Impermanence of obstruction by box cars on switch track obstructing view of approaching motorist in direction from which train was approaching main track crossing, if the obstruction in fact created an unusual hazard, did not relieve railroad of duty of providing a watchman until the obstruction was removed.

Appeal and error

5. In actions for injuries sustained in a grade crossing collision, presence of conditions constituting unusual or extraordinary hazard requiring railroad to maintain a mechanical signal, warning device, or watchman at the crossing is a question of fact and if there is substantial evidence tending to prove the issue involving such question upon which the jury could lawfully find for plaintiff, withdrawal of the question from jury would be prejudicial.

Railroads

6. Generally, except where the situation is unusually hazardous, occupation of a crossing by a train is in itself sufficient warning of its presence.

Railroads

7. Fact that grade crossing collision occurred is not in itself proof of railroad's negligence.

Railroads

8. A railroad had no duty to warn in any particular manner of the approach of its train to a grade crossing, but railroad's duty was fulfilled if it gave such warning by any reasonably adequate means.

Railroads

9. Where approaching train blew whistle approximately a mile from grade crossing over city street and track was visible for approximately 800 feet from crossing, which was within a switching yard and about half a block from a railroad station, blowing of whistle was not an adequate warning of train's approach.

Railroads

10. In action for injuries sustained in a grade crossing collision where motorist's view was almost completely obstructed until he was actually upon the track, evidence was sufficient to take case to jury on issue whether railroad had warned of the train's approach.

Evidence

11. Where attention of motorist approaching grade crossing was centered upon listening for bell, his hearing was good, and train must have been in the vicinity, motorist's testimony that he heard no bell was taken as a positive assertion that bell was not rung, and was not overcome by positive testimony of engineer and fireman that bell was rung.

Railroads

12. Where locomotive collided with automobile at grade crossing so quickly after motorist had come from behind box car to a point where engineer and fireman could have seen him that there was no opportunity for engineer to have stopped train in time, evidence was insufficient to take to jury issue of railroad's negligence in violating the "last clear chance" rule.

Railroads

13. In action for injuries sustained in a grade crossing collision where motorist's view of main track in direction from which train was approaching was obstructed by box cars on switch track, and motorist proceeded behind the obstruction at some 15 miles per hour centering his attention upon his normal sense of hearing and heard nothing, question of whether motorist was contributorily negligent in failing to observe train was for jury.

Railroads

14. In action for injuries sustained in grade crossing collision, where the view was obstructed and reasonable men might draw different conclusions as to whether reasonably adequate notice was

given of train's approach, and as to whether motorist was contributorily negligent in crossing tracks relying upon his sense of hearing, trial court properly submitted such question to jury.

Railroads

15. Generally, a motorist approaching a railroad crossing at which the view is obstructed is not required to go forward on foot to a point where an unobstructed view of the track may be obtained.

Negligence

16. Unless there can be but one reasonable deduction from facts, question of contributory negligence is for jury.

Railroads

17. Where signals were not given of train's approach to grade crossing at which the view was obstructed, motorist was not contributorily negligent in proceeding in reliance upon his sense of hearing and in failing to stop.

Railroads

18. A traveler approaching a grade crossing is not excused from both looking and listening assuming that there is a safe place from which the traveler can look, and especially where he is familiar with the situation, he must use greater care as the danger is greater.

Railroads

19. Where place from which motorist approaching grade crossing ordinarily might have looked with safety and with sufficient nearness to the tracks had been blocked by box cars on a switch track restricting his view to 32 feet of the main track to his right from which direction train was approaching, and motorist observed that there was no locomotive attached to box cars, looked in both directions, and as he went forward looked generally to the right and approaching train could not be seen, motorist's failure to look from a place where he could have seen train was not contributory negligence, precluding recovery for injuries sustained in collision with such train.

Railroads

20. A highway traveler about to pass over a railroad crossing and the operators of a train approaching the crossing simultaneously are under the same obligation each to the other to exercise reasonable diligence to avoid collision with the exception that the train has the right of way.

Railroads

21. In action for injuries sustained in a grade crossing collision, where the view was obstructed by box cars on a switch track, the width of absolute clearance between the tracks was six feet, and

the automobile measured nine feet from the front bumper to the driver's seat, motorist's contributory negligence in relying upon his sense of hearing and failing to look was for jury.

Railroads

22. A motorist approaching a grade crossing had no right to depend solely upon signals from an approaching train, but even if such signals were absent, was under duty to exercise due care for his own safety.

Railroads

23. In action for injuries sustained in a grade crossing collision where the view was obstructed by box cars, question whether motorist failed to heed signal by bell on locomotive was properly left to jury.

Master and servant

24. Where a master and servant are joined as defendants in an action for a tort committed by the servant, a verdict for the servant exonerates the master where the master's liability under the respondeat superior doctrine is based solely upon the servant's wrongful act.

Master and servant

25. Where complaint for injuries sustained in a grade crossing collision charged railroad corporation and conductor jointly with certain acts of alleged negligence, and it appeared that the conductor did not personally commit any of the acts charged to him, and verdict exonerated conductor, verdict against railroad was not without legal basis.

ON PETITION FOR REHEARING

Railroads

26. Generally, what precautions are reasonably necessary for safety of public at railroad crossing city or where travel is great is jury question.

Railroads

27. Whether temporary presence of box cars on switch track adjoining busy railroad crossing in city constituted unusual hazard, requiring railroad company, in exercise of due care, to provide flagman, watchman, or automatic signalling device, or take other precautionary measures reasonably necessary for safety of travelers using crossing, was for jury under evidence.

Railroads

28. Testimony of driver of automobile, struck by train at city crossing, that he did not hear bell ring to give warning of train's approach, though he was listening for bell and his hearing was good, constituted substantial evidence, weight of which was for jury, that defendant failed to give such warning.

Railroads

29. The doctrine, applicable to ordinary railroad crossing accident cases, that presence of railway track is sufficient warning to traveler, without presence of flagman or signalman, cannot be applied so strictly as to require that person injured by train at grade crossing be held contributorily negligent, as matter of law, irrespective of hazardous condition of crossing and railway company's negligence in failing to give warning of train's approach.

Railroads

30. Whether motorist's failure to stop automobile and put his head out window in order to hear better before proceeding over railway crossing constituted contributory negligence, barring his recovery of damages from railroad company for injuries sustained when automobile was struck by train, was for jury.

Railroads

31. Whether driver of automobile, struck by railroad train at city crossing, should have stopped automobile in front of box cars on adjoining switch track and gone forward to reconnoitre on foot before proceeding over crossing was question for jury.

Appeal and error

32. It is not within Supreme Court's province, on appeal, to pass on weight of substantial evidence on fact question submitted to jury by trial court.

LUSK, J.,...