Hornschuch v. Southern P. Co.

• Decision Date: 30 July 1921
• Citation: 101 Or. 280,203 P. 886
• Parties: HORNSCHUCH v. SOUTHERN PAC. CO. ET AL.
• Court: Oregon Supreme Court

203 P. 886

101 Or. 280

HORNSCHUCH v. SOUTHERN PAC. CO. ET AL.

Supreme Court of Oregon

July 30, 1921

Department 2.

Appeal from Circuit Court, Multnomah County; John McCourt, Judge.

Action by Vivian Hornschuch, a minor, by Rose M. Hornschuch, her guardian ad litem, against the Southern Pacific Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

R. M Hornschuch is the mother and the duly appointed guardian ad litem of Vivian Hornschuch, a minor seven years of age. The defendant, the Southern Pacific Company, is a Kentucky corporation, and the owner of a line of railway between Witch Hazel and Reedville, in Washington county, which it operates by electrical power. The defendant Sweeney was its motorman. Louise Schneider was the driver of an automobile. Sunday October 7, 1917, she invited the mother and the minor to take an automobile ride, and, while driving along a public road between the above-named places, about 4 p. m., the automobile was struck by an electric train while it "was attempting to cross, on a public crossing, the railroad track of the defendant company," as the result of which the minor sustained serious personal injuries. For cause of action plaintiff alleges:

That upon approaching the crossing, the automobile "had slowed down to a few miles per hour, and was practically creeping along"; that the plaintiff looked in both directions along the track, and "listened attentively to ascertain if any cars or trains were coming on said tracks"; that "almost simultaneously with said looking and listening, and while the mother of the above-named minor was continuing to look and listen, the train of cars above described, propelled by electric power and making very little noise, and without any previous warning to the minor or to the mother of the above-named minor, suddenly appeared from a westerly direction, traveling at a high, reckless, and dangerous rate of speed, and regardless of this highway crossing and the persons and vehicles who might be using the same, and the above-named minor in particular, and without giving said minor or the mother of the above-named minor time to get the said minor out of said automobile to some place of safety, and without giving the driver of said automobile time to reach a place of safety, violently, carelessly, and negligently ran into and against said automobile," causing the injuries to the minor.

It is then alleged:

That the plaintiff did everything possible in the exercise of care and prudence in approaching and crossing the track and in trying to warn the driver of the automobile upon the discovery by the mother of the impending danger, "but owing to the carelessness and negligence of the defendant company herein described the time between the discovery of the impending danger and the collision was so sudden and so short as not to permit the above-named minor to act for her own safety"; that the company was negligent in not posting a "Railroad Crossing" sign at or near the point mentioned; "that, by reason of this failure, the mother of the above-named minor and the driver herein mentioned failed to notice that the road was approaching this railroad crossing until the turn directly onto the said track was reached"; that at the time of the accident the atmosphere was hazy and dusty, and obstructed the view of the railroad; "that said dust and haziness were caused by the passage of the great number of automobiles and other traffic along the highway at, over, and near the crossing described, and that the passage of said automobiles and other vehicles along this highway, causing said dust and haziness, was well known to the defendant company"; that it knew that a great many automobiles daily passed this crossing, especially on Sunday, thereby causing such haze and dust in the vicinity; that the company carelessly and negligently failed to take notice of such facts; that it failed to run its train at a reasonable rate of speed across the crossing, and that such failure was a disregard of the rights of the minor; that if such precaution had been taken it would have avoided the accident; that the defendants were careless and negligent in not keeping a proper lookout on the train for the approach of vehicles and automobiles; that they wrongfully and negligently failed to warn the mother or the minor by the ringing of any bell or whistle upon the approach of such crossing: that they were "further careless and negligent in operating and running said train at a reckless, dangerous, and exceedingly high rate of speed over said described crossing"; that the crossing was one of the main highways of the state between Portland, Hillsboro, Forest Grove, McMinnville, and other places; that the defendant corporation was negligent in failing to provide at such crossing "suitable electric signal devices, bells, semaphores, or other suitable and efficient warning methods or devices" to warn the minor of the approach of the train to and over such crossing; that the defendant knew this was a dangerous crossing "because of the fact that the railroad track for some miles on either side of said crossing is straight and level, and that the orders and time schedule of the defendant company at the time of the collision herein described required its passenger trains to maintain a high and dangerous rate of speed over and across this particular crossing"; that to make such crossing safe the defendant knew it was necessary to install electric devices and bells, and that such installation would not have interfered with the operation of the train; that if such devices had been installed the minor would have been warned, and the accident would have been avoided; that the driver of the automobile was a reasonably prudent and careful driver, and free from any neglect; that the injuries to the minor were caused by the neglect and carelessness of the defendant, which were the sole and proximate cause--by reason of which plaintiff asks for damages in the sum of $10,000.

For answer the defendants made a general denial of all of the material allegations of the complaint, and as a further and separate defense allege:

That the crossing is about 4,200 feet west of the town of Reedville; that while the train was approaching this station, and was operated in a careful manner, it collided with a Chandler seven-passenger automobile, owned by Adolph Schneider and operated by Louise Schneider, and that upon approaching the crossing the occupants of the car failed to look or listen for the approaching train, and negligently and carelessly allowed the driver to drive upon the track without looking for the approach of the train and to go upon the railroad directly in front of the train; that defendant's train for some time prior and at the time of the accident was in plain view of the driver and the other occupants of the car; that the automobile, at a high rate of speed was carelessly and negligently driven upon the crossing without stopping or looking or listening for the approaching train; that without any regard for their safety they attempted to cross the railroad track; that the accident was caused "by the sole and gross negligence and carelessness of the parties in control of said automobile."

The reply is a general denial of the new matter. As a result of the trial, the jury found for the defendant, upon which judgment was rendered, and the plaintiff appeals, claiming that the court erred in admitting the evidence of M. Tihl, a passenger on the train, as to what he saw and heard, and in particular that he heard a lady standing in a Ford machine say, "Stop"; also that the court erred in the giving of certain instructions and in refusing to give plaintiff's requested instructions.

C. T. Haas, of Portland (Joseph Woerndle, of Portland, on the brief), for appellant.

Alfred A. Hampson, of Portland (Ben C. Dey and Roscoe C. Nelson, both of Portland, on the brief), for respondents.

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

The witness Tihl testified:

"Well, the whistle was blowing right along. We were coming in, and I was sitting up by the window, with the window open, and just as I felt the brakes go on I turned and looked out, and there was a Ford machine standing by the curve, with a lady standing in the back end of the machine, and I heard her say, 'Stop.' "

The witness further testified:

That he spoke to the woman and saw the machine after the accident; that "the window was open, and just then I looked out and saw this Ford machine on the curve and standing still. The Ford had made the turn already. They were right on the curve," and the lady was standing in the back part of it.

He also testified:

"Q. Did you see the Schneider automobile? A. I seen them--the first I seen of that machine was when it went on the outside of the Ford machine, and was just a little bit past.

"Q. You saw that Schneider automobile, then, in which these people were riding, just the

other side of the Ford? A. It was past the Ford.

"Q. After it had passed the Ford? A. The Ford was right on the curve--just made the turn of the curve.

"Q. And before the smash-up, of course? A. Yes; before the smash-up." The evidence of the witness that he heard the lady in the Ford machine say "Stop" was admitted by the trial court as a part of the res gestæ. The plaintiff claims that this was error. The brakeman, W. H. Gould, testified that "there was a machine at the crossing where we struck the car." As we read the record, both the train and the automobile were going toward Portland, and the county road ran parallel with the railroad track to the crossing, where a turn was made in the county road to make the crossing, and the Ford machine referred to by the witness Tihl was standing in the county

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