Koch v. Southern Pac. Transp. Co.

Decision Date25 March 1976
Citation547 P.2d 589,274 Or. 499
PartiesThomas LeRoy KOCH, by Ermol Lee Koch, Guardian ad Litem, Respondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Foreign Corporation, Appellant.
CourtOregon Supreme Court

James H. Clarke, Portland, argued the cause for appellant. With him on the briefs were George L. Kirklin, and Dezendorf, Spears, Lubersky & Campbell, Portland.

Burl L. Green of Green, Griswold, & Pippin, Portland, argued the cause for respondent. With him on the brief were John E. Jaqua of Jaqua & Wheatley, Eugene, and John J. Haugh of O'Connell, Goyak & Haugh, P.C., Portland.


HOLMAN, Justice.

Plaintiff was injured while a passenger in an automobile which was struck by defendant's train at a grade crossing of the railroad and a county road in Lane County. Defendant appeals from a judgment entered pursuant to a jury verdict for plaintiff. This is the second appeal arising out of the same litigation, a prior verdict for plaintiff having been reversed by this court 1 and the initial retrial having resulted in a mistrial.

The vehicle in which plaintiff was riding was being operated on Thurston Road. Thurston Road approached defendant's tracks at an acute angle and immediately prior to the intersection made a sharp turn to the right and crossed the tracks at a right angle. In our previous opinion we held it could be found, because of a combination of circumstances including impaired view of the tracks and the acute angle of the approach to them, that the crossing was extrahazardous and that defendant owed plaintiff the duty to install automatic signals and/or gates. We also held that a breach of such duty could be found to have been a cause of plaintiff's injuries albeit the driver of the vehicle in which plaintiff was riding drove through a stop sign and upon the track immediately in front of defendant's oncoming train. However, we reversed the judgment because of the improper admission of evidence and, in addition, we abolished the ultrahazardous crossing doctrine and held that a railroad henceforth would be held to owe the duty of ordinary care to the motoring public at its grade crossings.

Prior to its intersection with the railroad, Thurston Road branched off from Mt. Vernon Cemetery Road which, about 1,200 feet north of the Thurston crossing, also crossed defendant's tracks. Lane County suggested to defendant that application be made to the Public Utility Commissioner (PUC) to install automatic gates and flashers at the Mt. Vernon Cemetery crossing and to close the Thurston crossing. They agreed to jointly pay the cost and the defendant cooperated in the county's application to the PUC. Approval of the application was delayed because of a minor change in grade requested by the Highway Commission at the Mt. Vernon Cemetery crossing. After the application was finally approved and while the work was in progress at the Mt. Vernon Cemetery crossing and while the Thurston crossing was still in use, the accident occurred.

One of the assignments of negligence in plaintiff's complaint which was submitted to the jury was the defendant's failure to install automatic signals and/or gates at the Thurston crossing. Defendant contends that because of the statutory authority of the PUC over railroad crossings and because of its regulations which prohibit a change in crossing protection without first obtaining the written approval of the PUC, the jury should have been informed about the legal limitations of defendant's ability to install crossing protection. Defendant states its position as follows:

'* * * At the trial, a critical issue arose over the materiality of the regulatory system under which defendant can install crossing protection or alter crossings only after securing the written permission of the Public Utility Commissioner. The circuit court refused to instruct the jury in any way about the existence or the legal effect of these limitations; instead, it instructed the jury that public regulation relating to protection at crossings was irrelevant to its consideration of the case under the standard of ordinary care. * * *.'

Instructions requested by defendant which the trial court failed to give would have told the jury of the authority of the PUC over the installation of safety devices at crossings and the authority over the signs by the governmental body having supervision of the highway. It also requested instructions that in order for plaintiff to prevail, the jury must find that (1) the defendant should have applied to the PUC for authority to install the automatic signals and/or gates at the Thurston crossing; (2) the PUC would have authorized the installation of the safety devices; (3) the PUC would have given permission for the installation in sufficient time to place the signals in operation before the accident; and (4) the accident would not have occurred but for the failure to install the automatic devices. Defendant also requested that the allegations of negligence concerning the installation of the automatic devices be withdrawn from the consideration of the jury and that the jury be told to disregard the allegation because of the lack of evidence of (1) through (4) as set forth above. In addition, defendant excepted to the following instruction given by the trial court which concerned the duty which defendant owed to plaintiff:

'I instruct you that it was the duty of the railroad to exercise reasonable care for the safety of persons using the crossing. In performing this duty, the defendant was entitled to consider recommendations or requirements of governmental agencies. However, compliance with such recommendations or requirements would not fulfill the defendant's duty if in the exercise of reasonable care the defendant ought to have gone beyond such recommendations or requirements.'

If defendant's contention concerning the limitation of the railroad's ability to install safety devices because of governmental control is applicable, it is remarkable that this court has not seen it before. Such a contention would have been just as appropriate when cases were tried under the extrahazardous rule and such a charge of negligence was made as it is now when cases are tried under the rule of ordinary care. It is our opinion that the instruction given by the trial court concerning defendant's duty to plaintiff was correct and the instructions requested by defendant either were not material or were given in substance. Defendant is correct that it should not be found negligent for failing to install safety devices which the PUC would not permit. However, there is no evidence that the PUC did not permit such improvements or that he would have refused to allow them in this instance had application been made.

Plaintiff cites authority to the effect that compliance with statutory or regulatory requirements does not absolve the railroad from liability if the exercise of due care requires more protection for motorists. Such authority does not really speak to the principal issue raised by defendant because, as mentioned in our opinion in the first appeal of this case, there are very few regulatory or statutory requirements concerning safety put upon railroads, and the PUC treats the subject primiarily on a crossing-by-crossing basis. Insofar as plaintiff's cited law is applicable, we agree with plaintiff that governmental requirements should be treated as minimum requirements only, in the absence of contrary indication. See Restatement of the Law of Torts (Second) 39, § 288C.

In the absence of evidence of what the PUC would have done had an application been made, the issue is who has the burden of establishing whether governmental authority would or would not have permitted installation of gates and signals at the crossing. Defendant impliedly takes the position that because plaintiff claims defendant was negligent in failing to install such devices, it was his obligation to prove that permission could have been secured by defendant for their installation. We hold to the contrary because it seems logical to us that plaintiff should have the duty to prove that due care requires the installation of the devices and, upon such proof, defendant should have the duty of proving that governmental authority would not have permitted it to conform with the requisites of due care. The constraint of governmental authority properly relates to circumstances giving rise to justification or excuse for failure to exercise the reasonable care normally called for in the situation. It is elementary law that circumstances raising the possibility of justification or excuse must be proven by the asserting party. As stated by Wigmore,

'* * * in most actions of Tort there are many possible justifying circumstances,--self-defence, leave and license, 'volenti non fit injuria,' and the like; but it would be both unfair and contrary to experience to assume that one of them was probably present, and to require the plaintiff to disprove the existence of each one of them; so that the plaintiff is put to prove merely the nature of his harm, and the defendant's share in causing it; and the other circumstances, which would if they existed leave him without a claim, are put upon the defendant to prove. * * *.' IX Wigmore, Evidence 275--76, § 2486 (3d ed 1940).

Defendant asserts that the jury should have been informed of the statutory and regulatory scheme which gives the PUC control over safety equipment at crossings, even in the absence of specific evidence of what the PUC would have done had a request been made to install such equipment. It argues that the instructions would have informed the jury of the regulatory climate in which it operates and such information was necessary, in addition to evidence of the physical condition of the crossing, to a fair assessment of what a reasonably...

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24 cases
  • State v. Langley
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    • Supreme Court of Oregon
    • December 29, 2000
    ..."precludes relitigation or reconsideration of a point of law decided at an earlier stage of the same case." Koch v. So. Pac. Transp. Co., 274 Or. 499, 512, 547 P.2d 589 (1976) (emphasis In Langley I, the "point of law" at issue was whether retroactive application of the true-life sentencing......
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