Kirby v. Southern P. Co.

• Decision Date: 10 July 1923
• Citation: 108 Or. 290,216 P. 735
• Parties: KIRBY v. SOUTHERN PAC. CO. ET AL.
• Court: Oregon Supreme Court

216 P. 735

108 Or. 290

KIRBY v. SOUTHERN PAC. CO. ET AL.

Supreme Court of Oregon

July 10, 1923

Department 2.

Appeal from Circuit Court, Yamhill County; H. H. Belt, Judge.

Action by D. M. Kirby, administrator of the estate of Thomas Patsy Kirby, deceased, against the Southern Pacific Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

The plaintiff, D. M. Kirby, brings this action as administrator of the estate of his son, Thomas Patsy Kirby, who met his death at the age of 18 years as the result of a collision between an automobile which plaintiff's decedent was driving and a Southern Pacific electric passenger train. W L. Scruggs, conductor of the train, is made a codefendant with the company. From a judgment on a verdict in favor of plaintiff, defendants appeal.

Roscoe C. Nelson, of Portland (Ben C. Dey, of Portland, on the briefs), for appellants.

W. T Vinton and Walter L. Tooze, Jr., both of McMinnville (Lamar Tooze, of McMinnville, on the briefs), for respondent.

BEAN J.

In stating the facts we do not find the same, but mean that there was some testimony tending to show the facts as stated. The accident occurred at Fifth and Railroad streets in the city of McMinnville, Or., on November 29 1920, at about the hour of 12:40 p. m. The electric passenger train No. 358, consisting of two cars, was bound on the main line from Whiteson, Yamhill county, north toward Portland and was within two blocks of the McMinnville depot when the collision occurred. After striking the automobile the train ran for a block before it stopped, and carried the automobile with it. Some part of the automobile tore up the ends of a number of the ties; "just cut them right off." The brakes of the train were applied before the car was struck. Thomas Patsy Kirby and one Trent, riding in the front seat of the Ford automobile, were killed, and one Lawson and Edwin Kirby, sitting in the back seat of the automobile, were injured, Lawson seriously and Edwin Kirby slightly.

Fifth street runs approximately east and west, and Railroad street approximately north and south. A spur or industrial track is east of the main line, and was crossed by decedent, who was proceeding in a westerly direction on Fifth street. The Southern Pacific Company operates electric warning bells at each of the intersections of the railroad at Second, Third, and Fourth streets, which are north of and parallel to Fifth street. These streets are paved. There was no warning bell located at the Fifth street intersection with the railroad, or at any point south of Fifth street, at the time of the collision. At the corner of Fifth and I streets a warning sign of the railroad was in plain view. At the railroad track another warning or crossing sign was in view. There was no traffic on Fifth street in the vicinity of the railroad crossing at the time of the accident. The speed of the automobile was not slackened, and its course was not altered until it swerved to the north at the instant of the impact.

An ordinance of April 1, 1919, of the city of McMinnville required the Southern Pacific Company to install and maintain a warning bell at the Fifth street intersection, which it failed to do. By an ordinance of the city dated October 8, 1912, the speed of the trains within the corporate limits of McMinnville was limited to 12 miles per hour. The population of McMinnville, including the immediate vicinity outside of the city limits, is about 5,000.

At the intersection of Railroad and Fifth streets Gray Bros. Warehouse is on the northeast corner, the McCullough house is on the southeast corner, a dwelling house is on the southwest corner, and a lumber yard is on the northwest corner. In most of the blocks cornering on the intersection there are numerous buildings, trees, etc., somewhat obstructing the view of the railroad to the north and south to a person traveling west on Fifth street. I street in McMinnville is a paved street running north and south, one block east of and parallel with the railroad. Fifth street intersects I street about 325 feet east of the railroad crossing on Fifth street. Sixth street is about 220 feet next south of Fifth street, and parallel thereto. There is a railroad cross-arm at the northwest corner of the intersection of Sixth street and the railroad. The north end of a railroad trestle is about 580 feet south of the Fifth street intersection. The trestle is 518 feet long. The city limits are about 1,500 to 2,000 feet south of the trestle. "Trip E," which starts the warning bell on Fourth street ringing upon the approach of a north-bound train, is located near the north end of the trestle.

On the day of the accident the decedent and Edwin Kirby went from the school building to a restaurant at the noon hour to eat their lunch. In returning with Trent they passed east on Third street and south on I street, where they stopped to pick up their schoolmate, Lawson, at the corner of I and Fifth streets, and then proceeded to the place of the accident.

According to Mr. Jones, a civil engineer, the journey of the automobile after traveling 10 or 20 feet from the starting point at Fifth and I streets covered four sectors in so far as views of the railroad track were concerned. We will designate these sectors A, B, C, and D. From a point at 310 feet east of the main track there is a 110-foot sector A extending to a point 200 feet east of the track. From sector A the trestle and the track south of it are visible. The distance from the south end of the trestle, crossed by a train coming into McMinnville from the south, to the point of collision is between 1016 and 1026 feet. An intervening space of approximately 500 feet of the track is not visible from sector A. The next 75 feet traveled by the automobile, that is, from a point 200 feet east of the point of collision to a point 125 feet east thereof, may be designated as sector B. From this sector the driver could see the cross-arm at the intersection of Sixth and Railroad streets, and a train on the railroad track north of this intersection for about 75 feet.

Sector C is from a point 200 feet west of Fifth and I streets, at which point the traveler reaches the scales of Gray Bros., where the view to the south is wholly obstructed until the traveler is opposite the northwest corner of the McCullough house; that is, a space of approximately 60 to 65 feet would be traveled before the traveler could see 50 feet of track south of Fifth street, or about 95 feet south of the point of collision. Sector D is designated in the briefs as the crucial sector, consisting of the last 60 or 65 feet traveled by the automobile from which the railroad track was plainly visible for a short distance.

Upon the map Mr. Jones, a civil engineer, designated a point as 65 feet from the point of collision. The map appears to be drawn to a scale of 40 feet to the inch. ^[1] The testimony shows that the automobile was traveling at the rate of 12 or 15 miles per hour, and that the train was running at the rate, taking the highest estimate of speed, of 30 miles per hour. From this point 65 feet east of the point of collision, according to the scale of the map, there would be a plain view of the railroad for only 95 feet south of the point of collision. The jury would be warranted in finding that the car was traveling at the rate of 12 miles per hour, or that the train was traveling 2 1/2 times as fast as the car. These are the rates that are discussed in the briefs. The automobile and the train reached the point of collision at practically the same time. It would take less than 3 seconds for the train to run 125 feet. It was "gliding," and would make but little noise. If the train was traveling 2 1/2 times as fast as the automobile, then, when the automobile was at the point 65 feet east of the point of contact, the train would be 162.5 feet south of that point. Therefore, if it be assumed that the decedent driving the automobile acted as an ordinarily prudent person, and looked toward the south and listened at the first opportunity after passing the McCullough house, the train was out of view or about 67 feet behind the McCullough house.

The warning bell at Fourth street was ringing at and immediately before the time of the collision. At that time a train stood on a side track at the depot two blocks north of the place of collision, and could be seen by one traveling west on Fifth street after passing Gray Bros.' Warehouse. Before reaching that point one could not see the railroad to the north owing to obstructions. Thomas Patsy Kirby, the decedent, was driving his automobile at a lawful rate of speed on the extreme right side of the street while proceeding toward and across the railroad crossing. From the appearance of the map in evidence the driver of the automobile could see the railroad to the south while passing west from the point designated 65 feet east of the point of collision over a space of 10 or 12 feet without seeing the train; that is, before it would be in view. When the automobile was a distance of 40 feet from the main line of the railroad track the occupants had an unobstructed view of the railroad for about 310 feet south, and this distance increased as the railroad track was neared.

Van Keuren Lawson, one of the passengers of the automobile who was injured in the collision, remembers nothing of the accident.

Edwin Kirby, a boy 14 years of age, and brother of decedent testified to the effect that after they stopped at the corner of Fifth and I streets they went toward Fifth street on the right side toward the railroad track. He was sitting on the left side of the car, and, glancing out toward the trestle of the railroad, he could see the trestle, but saw no train on the trestle. ...