Lindekugel v. Spokane, P. & S. Ry. Co.

• Decision Date: 26 March 1935
• Citation: 149 Or. 634,42 P.2d 907
• Parties: LINDEKUGEL v. SPOKANE, P. & S. RY. CO.
• Court: Oregon Supreme Court

42 P.2d 907

149 Or. 634

LINDEKUGEL v. SPOKANE, P. & S. RY. CO.

Supreme Court of Oregon

March 26, 1935

Department 1.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by Mrs. J. F. Lindekugel against the Spokane, Portland and Seattle Railway Company for damages sustained in a collision of plaintiff's automobile with defendant's locomotive at a railroad crossing. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Fletcher Rockwood, of Portland (Charles A. Hart and Carey, Hart, Spencer & McCulloch, all of Portland, on the brief), for appellant.

Hy Samuels and C.J. Stocklen, both of Portland (C. W. Robison and Davis & Harris, all of Portland, on the brief), for respondent.

KELLY, Justice.

At about three o'clock a. m. of June 20, 1931, a train consisting of an engine, a tender, and a caboose operated by defendant collided with plaintiff's automobile at a place between Portland and Linnton, where Ferry street crosses defendant's railroad track. As a result, plaintiff sustained personal injuries.

At the close of the testimony, defendant moved for a directed verdict in its favor upon the ground, among others, that the evidence established as a matter of law that plaintiff's alleged negligence caused or contributed to cause the accident. The refusal of the trial court to grant this motion is the first error assigned by defendant.

At the time of the collision, defendant's engine, tender, and caboose were proceeding northerly from Portland toward Linnton, and plaintiff's automobile was traveling easterly on Ferry street. To the east of the track and north of Ferry street (that is, across the track and to plaintiff's left as she approached the crossing) there was a post upon which a wigwag signal had been in operation but which had recently been disconnected. Plaintiff introduced testimony to the effect that the operation of this automatic signaling device had been disconnected only the day before the accident. Defendant's witness testified that it had been disconnected four or five days before the accident. For about ten days before the accident plaintiff had lived about 45 feet easterly from the crossing and was aware of the operation of the wigwag signal there.

Defendant's signal supervisor, who testified that he disconnected the wigwag signal at this crossing on June 15, 1931, explained that the signal consisted of a banner about 22 inches in diameter suspended about 30 inches below a gong; and that it was operated by an electric circuit from a battery, that "the wigwag tripped the tripper that made the gong sound on the approach of a train."

As to plaintiff's familiarity with this wigwag signal, we quote from her testimony:

"Q. Now, when you first came there, tell the jury what kind of a signal, if any, the railway company maintained at that crossing. A. Had a wigwag signal there.

"Q. A wigwag signal. And what else on the signal? A. A bell.

"Q. Would that wigwag signal and the bell sound whenever any train came across? A. Yes, sir.

"Q. Have you heard that wigwag signal during the daytime and the nighttime as well? A. Yes, sir.

"Q. How far distant, if you know, from the crossing proper would a train have to be before you heard this wigwag signal? A.

Oh, I should judge about 450 feet-or yards, or so.

"Q. About 450 yards?

"Mr Rockwood: Just a minute. Did you say 450 feet or yards? A. Well, about under the bridge. ***

"Q. Now, that automatic signal that was there, had that been there at the time you came there? A. Yes, sir.

"Q. And the wigwag, as you term the arm, had been there? A. Yes sir.

"Q. And how many times would you say in that week and a half or ten days or two weeks you were there that you had seen or heard that? A. Oh, several times. ***

"Q. I will ask you whether or not you were familiar with that wigwag signal and the bell? A. Yes, sir."

Before attempting to cross the track, according to plaintiff's testimony, she stopped her automobile three times and looked and listened to ascertain whether it would be safe to proceed.

We quote from her testimony:

"Q. And as you went down the hill, just trace for the jury the conduct of the car; what did you do? A. When I went down the hill I came in low, and at the top of the hill I came to a stop. Then I came down in low, came down about 50 or 75 feet and came to a complete stop.

"Q. Then what did you do? A. I listened and as there was no bell ringing or no lights, no whistle of any kind, I proceeded on.

"Q. Then what did you do? A. I came down about ten feet or so from the railroad crossing sign, I stopped again complete. I listened and I looked both ways. There was no bell ringing, I heard no whistle of any kind, the road was clear for me to go across.

"Q. Now, at that time or at any time from the time you came to a stop at the top of Ferry Street at that time, did you hear whistle, bell or gong of any kind? A. I absolutely, Mr Robison, heard nothing.

"Q. Did you see any light or headlight on an engine? A. No, sir."

As to the visibility at the time of the collision, the testimony of plaintiff is not directly challenged. The conductor on defendant's train was at his desk, the head brakeman was looking at the new St. Johns Bridge, which unquestionably is well worth looking at even at three o'clock in the morning, the engineer was unable to see plaintiff's car, because he was on the wrong side of the engine cab, which, by the way, was the right side, and the fireman from the left side of the cab saw merely reflections of light somewhere back on the hill.

We quote from the fireman's testimony:

"Q. Now, before this accident happened, before the collision actually took place, did you see the automobile which was later involved in the collision? A. No, I didn't see the automobile. I seen reflections of light somewhere back on the hill.

"Q. Are you able to estimate how far back from the track the automobile was when you saw those lights? A. Well, I would say some fifty feet.

"Q. Was the automobile at that moment standing still or running? A. Well, I couldn't say. It was running; it wasn't going very fast.

"Q. Were you able to observe that automobile from that moment up until the time of collision? A. No, I lost sight of it then.

"Q. Did you see it again then before the actual collision? A. Just a few feet from the track.

"Q. Was it standing still or moving at that time? A. Well, I think it was moving. I couldn't say, but it must have been."

This witness testified that the engine light was burning brightly; that he could distinguish objects very easily; that the fog did not materially impede his vision, and that he could see a long ways ahead.

The engineer testified that there was just a little bank of fog there that morning but nothing to amount to anything.

Plaintiff testified that upon her first stop, which was at the top of the hill, she could not see any distance to the north or south of the track. Obviously, this was because a store building intervened to the north and trees and shrubs to the south. Plaintiff also testified that upon her second stop she could see toward Portland only about 50 or 75 feet.

When first interrogated thereupon, plaintiff testified that upon her third stop she could see toward Linnton a distance of four or five hundred yards or so, and toward Portland about a couple of hundred yards.

Later, after defendant's testimony had been received and defendant had rested, plaintiff was recalled, and she then testified that at her last stop, when looking up the track toward Portland, she could see about three automobile lengths.

The question involved is whether as a matter of law plaintiff must be held to have been contributorily negligent or whether there are circumstances in this record making this case an exception to the cases where, in attempting to cross a railroad track, the traveler is deemed negligent because of failure to look or listen or to see and hear the approaching train.

The collision occurred at night and at a crossing where, until very shortly before it happened, a wigwag signal had been in operation, but which, at the time of the accident, was disconnected.

We are aware that the authorities are in conflict with respect to the effect of the non-operation of a wigwag signal which formerly was in use, upon the question presented by defendant's motion.

The authorities are collated in an annotation at page 975, et seq. of 53 A. L. R. Par. III.

We quote the headnote thereto:

"However, recovery against a railroad company for negligence for the failure of a signaling device to operate at a railroad crossing and warn the approach of a train may be defeated by proof of contributory negligence on the part of the traveler in putting too much reliance on the signal, and not employing that degree of care for his own safety which the law demands.

"The decisions are not in accord as to the extent to which a traveler may rely on the indication of safety which the silence of a signaling device at a crossing implies. In one line of cases it is held that a traveler has no right to rely solely on the silence of the signal, and is as a matter of law guilty of contributory negligence in proceeding to cross the track without taking further precautions for his own safety."

Following this headnote is a citation of numerous authorities, some of which are briefly reviewed.

Then the editor makes the following statement: "In perhaps a longer line of decisions it is held that, while the failure of a signaling device at a railroad crossing to operate and warn of the approach of a train does not entirely relieve a traveler from his duty to look and listen for an approaching train, nevertheless the traveler may rely to some extent on the apparent...