Kunz v. Oregon R. Co.

• Court: Oregon Supreme Court
• Writing for the Court: MOORE, J. (after stating the facts as above).
• Citation: Kunz v. Oregon R. Co., 93 P. 141, 51 Or. 191 (Or. 1907)
• Decision Date: 17 December 1907
• Parties: KUNZ v. OREGON R. CO. [*]

93 P. 141

51 Or. 191

KUNZ v. OREGON R. CO. ^[*]

Supreme Court of Oregon

December 17, 1907

Appeal from Circuit Court, Multnomah County; J.B. Cleland, Judge.

Action by Martha M. Kunz, administratrix of the estate of David H Kunz, against the Oregon Railroad & Navigation Company. From a judgment of nonsuit, plaintiff appeals. Reversed, and new trial ordered.

This is an action by Martha M. Kunz, as administratrix of the estate of her husband, David H. Kunz, against the Oregon Railroad &amp Navigation Company, a corporation, to recover damages occasioned by his death which was caused November 21, 1904 by his being struck by a locomotive drawing a passenger train as he was crossing the defendant's railroad at grade on a public highway within the corporate limits of the city of Portland. The negligence alleged as a basis for the recovery is, in effect, that the defendant's agents, without giving any warning of approaching the crossing, operated the engine, which caused the injury, at the unlawful and dangerous velocity of about 40 miles an hour, in violation of municipal regulations limiting the rate of speed of railroad locomotives within the corporate limits of the city to 6 miles an hour, and prescribing a penalty for a violation thereof; that if such agents had carefully observed the track they could have seen the intestate crossing in front of the engine and checked its speed, thereby avoiding any injury and that, because of a curve in the railroad and of such unlawful speed, it was impossible for the decedent, or any ordinarily prudent person, to have seen the train or heard its approach until it was too late to prevent a collision with it. The complaint states in detail the situation of the public crossing, and avers its constant use by many persons, which facts were well known to the defendant; that the city of Portland is duly incorporated, and its common council, pursuant to a legislative grant, enacted ordinances, limiting the rate of speed of railroad locomotives as mentioned, copies of which municipal law are set out; and further alleging the several duties imposed on the defendant's agents in operating the engine, and their neglect to comply with such requirements. The answer denied the material allegations of the complaint, and averred, inter alia, that the intestate lost his life in consequence of his own negligence. The reply put in issue the allegations of new matter in the answer, and the cause coming on regularly for trial the court, upon the motion of defendant's counsel, granted a judgment of nonsuit at the close of the testimony introduced by the plaintiff, and she appeals.

Ralph R. Duniway, for appellant.

Arthur C. Spencer, for respondent.

MOORE J. (after stating the facts as above).

Numerous errors are assigned by plaintiff's counsel on the ground that the court rejected testimony which he offered, and also admitted on the cross-examination of his witnesses testimony which the defendant's counsel was permitted, over objection and exception, to elicit. If it be conceded that the court's rulings in these respects were erroneous, the action complained of would not be prejudicial, provided the judgment of non-suit was properly given. To determine this question, the locus in quo will be particularly described, and the testimony introduced by the plaintiff's counsel, together with the cross-examination of his witnesses, to which no objection was interposed, will be detailed, from which may be inferred the degree of care exercised by the decedent.

Considering the courses respectively pursued by the train and by Kunz at the time and place of the accident, as they proceeded toward Portland, the defendant's railroad, within the limits of that city, is constructed northwesterly at the place where it is crossed at grade by the Sandy Road, a public highway extending southwesterly at the acute angle of 49 degrees and 45 minutes, as disclosed by a blue print received in evidence. At a point in the center of the Sandy Road 90 feet southwesterly from its intersection with the railroad the Barr Road, another public highway, commences and extends due east, intersecting the railroad at a point 170 feet southeasterly from the Sandy Road crossing. A cattle guard has been constructed across the railroad 350 feet southeasterly from the Sandy Road intersection, and in the same direction, at a point 1,500 feet from such crossing, a whistling post has been set at the side of the railroad. This post indicates the place where the warning signal should be given to announce the approach of a locomotive from the east toward the crossings mentioned. A short distance southeasterly from the whistling post the railway is again intersected by the Wiberg Lane. The railroad is construed through a cut which commences near the cattle guard and gradually grows deeper as it extends toward the whistling post, the northerly bank attaining at the highest place an altitude of 10 or 14 feet. A hedge has been planted on the south side of the Barr Road for some distance east from its intersection with the railroad. A dwelling, occupied at the time of the accident by W.H. Moss, stands on the southerly side of the Sandy Road, 405 feet from the crossing, and between this dwelling and the intersection, on the same side of the public road, is situated another house, which at that time was vacant. From a point on such highway 583 feet northeasterly from the crossing a person can look over the hedge and bank mentioned and see a locomotive coming west as it emerges from the cut at a point 633 feet from the Sandy Road crossing, but the smokestack of the engine can be seen farther away. It will thus be seen that, in consequence of the excavation and also of the houses mentioned, an extended view of the railroad east of the crossing cannot be obtained by a person traveling on the Sandy Road toward Portland, but when he reaches a point on that highway about 50 feet from the crossing the testimony discloses that he can behold the track almost to the whistling post.

The admitted facts are that on November 21, 1904, about 8 o'clock in the morning of a fair day, Kunz drove toward Portland a pair of horses hitched to a wagon that was loaded with farm produce, and as he attempted to cross the railway at the Sandy Road intersection a locomotive drawing a passenger train which was about on schedule time, and also going in the same direction, collided with him, which resulted in killing the horses, breaking the wagon and harness, scattering the produce, and injuring him so that in a few hours thereafter he died.

W.H Moss, who, it will be remembered, resided near the Sandy Road crossing, testified for the plaintiff that on the morning of the collision he saw Mr. Kunz pass, driving his team at the rate of two, or possibly three, miles an hour; that when Kunz was probably within 40 or 50 feet from the track, the danger whistle was sounded by the engineer just beyond the cattle guard near the Barr Road; that the train was then running from 20 to 30 miles an hour. In answer to the question, "How much time elapsed between the sounding of this danger whistle right at the cattle guard and the engine hitting the horses?" the witness replied: "Well, it was very quick. Of course, I could not tell you the exact time. All my recollection is I looked around when the locomotive blowed the alarm whistle, I looked around, and saw the train's momentum slackening, and I looked instantly back and his team was standing square on the crossing, right on the crossing of the track--standing there--and he just made a motion as if he was rushing his horses forward or back, and he was gone that quick (the witness slapping his hands together)." On cross-examination Mr. Moss was asked, "How soon after Mr. Kunz drove up on that morning was it before you heard the whistle of the train?" and answered: "Well, I heard the whistle of the train just as he passed by my house. I heard them whistling on up above, towards Montavilla when he passed by the house. Q. Did you see or observe him as he continued to drive from your house down to the track? A. Yes, sir; I observed him. Q. Did you notice whether he was looking or listening for the approach of that train? A. Well, I didn't see him looking, or notice him do anything in particular at all. *** He was smoking along leisurely, and I didn't see that he paid any attention at all. That is what caused me to stop and remain on the platform looking at him, wondering why he wasn't spurring up his team, or something of that kind, because I heard the whistle coming down along the road above there. Q. And did you hear them at the whistling post above there? A. Well, we didn't know where it was. I did not. Q. They were up in that location up there? A. Yes; I could not tell whether it was the Wiberg Lane, or where it was. Q. There is not much difference between the Wiberg Lane and the whistling post? A. No, not at all. Q. Anyway, it was whistling rapidly coming down through there, was it not? A. Yes; I heard a whistle two or three times before the accident. Q. Did you see him turn his head, or not? A. No. Q. Now he was walking his team as he went along the road there as he passed your house? A. Yes, sir. Q. What is the fact as to whether he got them into a trot or not? A. That I could not say, because I never seen the horses trotting, to my recollection. They might have trotted a little down toward the bottom of the grade, but not to my recollection. *** Q. And you saw the engine coming down in full sight, and whistling before he got onto the crossing? A. Just as I tell you. As he was just going up to the--approaching to the--railroad crossing, I heard the alarm whistle, and of course I turned my head that way instantly, and I turned back instantly as quick as I had...