Lindsey v. Southern Pac. Co.

Citation240 Or. 11,399 P.2d 152
PartiesAnna LINDSEY, Administratrix of the Estate of Angela Crowser, deceased, Appellant, v. SOUTHERN PACIFIC CO., a corporation, and Francis Kelly, Respondents.
Decision Date10 February 1965
CourtSupreme Court of Oregon

Philip A. Levin, Portland, argued the cause for appellant. On the brief were Pozzi, Levin & Wilson, Portland.

Kaye C. Robinette, Portland, argued the cause for respondents. With him on the brief were Koerner, Young, McColloch & Dezendorf and John Gordon Gearin, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

DENECKE, Justice.

In this action for wrongful death resulting from a railroad crossing collision, the trial court entered a judgment of involuntary nonsuit and plaintiff appeals.

There was evidence from which the jury could reasonably have found the following: Plaintiff's intestate was a passenger in a car which stalled on the crossing with its front wheels overlapping one rail. At this time the train was about eight or nine blocks away. The driver began working with the gearshift lever; the decedent told the driver 'to do something with this automobile'; immediately after that the decedent attempted to open the door; being unfamiliar with the latch it took her 'a few seconds' to open the door. At the time of impact she had opened the door and had one foot on the ground; the train struck the front of the car, spinning it around and knocking plaintiff under the wheels of the train. The track at this point was straight; it was afternoon and visibility was excellent. The stalled car was visible to the train engineer for eight or nine blocks. The train was accelerating on full throttle until a split second before the impact; the train was traveling at about 35 miles an hour, the speed limit; the train could have been stopped in about 300 feet; the brakes were not applied until a split second before the impact. The engineer testified that he did not 'decide' that the car was not going to move and the occupants were not going to be able to get off the track until he was 50 to 100 feet from the crossing.

The grounds asserted for the nonsuit were contributory negligence on the part of plaintiff and no negligence on the part of defendants. The trial court was reluctant to grant a nonsuit but believed it was required to do so under our decisions in Emmons v. Southern Pac. Co., 97 Or. 263, 191 P. 333 (1920), and Marks, Exec. v. Southern Pac. Co., 211 Or. 539, 316 P.2d 523 (1957). The trial court appears to have based its decision upon the ground that the railroad was not negligent.

Some of the statements in those cases appear to support the trial court's decision; however, they are made in the context of deciding the issue of last clear chance and not the issue of the railroad's negligence. In Emmons the court held, 'there was no error in denying the motion for a directed verdict.' (97 Or. at 295, 191 P. at page 343) This necessarily is a holding that the railroad's negligence was a question of fact. It is also a holding, as the court expressly stated, that the applicability of the last clear chance doctrine was a question of fact.

In Marks the plaintiffs decedent drove his car upon the tracks where it stalled. The court affirmed a judgment for the railroad made notwithstanding a verdict for plaintiff. The grounds were that plaintiff was contributorily negligent as a matter of law and that: 'The evidence fails to show that the defendants had a last clear chance of avoiding Marks' injury.' (211 Or. at 549, 316 P.2d at 528) Nothing was said about the railroad's negligence.

Decisions that the railroad did or did not have the last clear chance are not decisions that the railroad was or was not negligent. Last clear chance is a contention made to avoid the consequences of the rule that plaintiff's contributory negligence will bar his recovery. 1 Last clear chance becomes an issue only after a finding that the plaintiff as contributorily negligent. The usual sequence of issues is: (1) Was the defendant negligent? If not, the inquiry is terminated in defendant's favor. If he was negligent, the next issue is: (2) Was the plaintiff negligent? If not, the inquiry is terminated in plaintiff's favor. If he was negligent, the final issue is: (3) Did defendant have the last clear chance? A decision that the defendant did or did not have the last clear chance presupposes that the defendant was negligent.

A decision on last clear chance is not a decision on the issue of the railroad's negligence for the further reason that in Oregon last clear chance is a doctrine of 'discovered peril.' This court has repeatedly held that a defendant cannot be held to have the last clear chance unless he knows of plaintiff's peril; it is not sufficient if only he should have known of plaintiff's peril. Scholl v. Belcher, 63 Or. 310, 324, 127 P. 968, 973 (1912). On the other hand, the test of a defendant's negligence, a railroad or otherwise, is either it 'knew' or, as a reasonably prudent person, it 'should have known.' A decision that a jury could not reasonably find that the railroad knew of plaintiff's peril is quite different from a holding that a jury could not reasonably find that the railroad should have known of plaintiff's peril.

Plaintiff in this case does not rely upon last clear chance. It is not essential that she do so as decedent was not contributorily negligent as a matter of law. The statement of the facts is sufficient authority for our conclusion that this issue is for the jury.

Under general tort principles the operators of a railroad train approaching a crossing have a duty to exercise reasonable diligence to avoid a collision. Fish v. Southern Pacific Co., 173 Or. 294, 321, 143 P.2d 917, 145 P.2d 991 (1944). The railroad has a right of precedence at a crossing. However, '[n]either the railroad nor motorist has an exclusive right to the use of the highway but must use it with due regard to the rights of the other.' Finn v. Spokane, P. & S. Ry. Co., 189 Or. 126, 132, 214 P.2d 354, 356, 218 P.2d 720 (1950).

The jury could have found that the engineer saw, or should have seen, for a distance of eight or nine blocks, the vehicle stopped on the track and further found that a reasonable and prudent train engineer would have put his train under such control that if the car remained on the track he could stop the train in order to avoid a collision. In Sheard v. Oregon Elec. Ry. Co., 131 Or. 415, 426, 282 P. 542, 545 (1929), the jury was authorized to make such a finding by an instruction, approved as to substance. The instruction was:

'* * * that if you find that the defendant or its motorman in operating its train saw the plaintiff's intestate on the track in the automobile, a sufficient distance away from the deceased, to have enabled it to have stopped its train, it was defendant's duty to stop its train, and the failure to do so under such circumstances would constitute negligence on the part of the defendant; * * *.'

Broad v. Pennsylvania R.R. Co., 357 Pa. 478, 55 A.2d 359 (1947); Pollard v. Oregon Short Line R. Co., 92 Mont. 119, 11 P.2d 271 (1932); and Herrera v. Southern Pacific Company, 155 Cal.App.2d 781, 318 P.2d 784 (1957), held under similar circumstances, that the railroad's negligence was for the jury.

The trial court erred in granting the motion for nonsuit.

Reversed and remanded.

ROSSMAN, J., did not participate in the decision of this case.

PERRY, Justice (dissenting).

I am unable to agree with the majority. The majority opinion simply states that the evidence in this case fails to show that the plaintiff was guilty of contributory negligence as a matter of law. Since the opinion states no legal reason for this conclusion, I presume it is because the decedent was not operating the motor vehicle at the time it was struck by defendant's engine. The plaintiff's evidence in this case is in my mind conclusive that the deceased in fact was negligent as a matter of law. Mr. Roy Beem, a witness for plaintiff, testified as follows:

'Q * * * Now, as you approached the intersection of the railroad crossing there at Garden Valley Road, did you bring your car to a stop?

'A I did.

'Q For what reason please?

'A The lights started flashing, signaling the approaching train.

'Q I want you to be sure, Mr. Beem, and speak up loudly so that all of the jurors hear you because it's kind of difficult sometimes. Now how far from the crossing were you when the signals started going?

'A I would say I was maybe 50 or 100 feet from it.

'Q All right. And when you stopped your car did any other cars come upon the crossing?

'A There was a car following me in the other lane, close, and they pulled on past me and stopped on the tracks.

'Q Now, this was the automobile that was involved in the collision?

'A Right.

'Q Now, about how long after you had come to a stop was it that the other car came up to the point on the tracks?

'A Well, just a second or two because they were right--just running right along just behind me.'

The testimony of the driver of the car, a Miss Brusseau, also a witness for plaintiff, testified as follows:

'Q Now, just start back a little ways from this crossing and tell me in your own words how the accident happened. Just describe how this came about?

'A Oh, I was driving down the road and we came to the tracks and I slowed up and I stopped to put the car into first because my boyfriend at that time--well, he always put the car in first when he went over bumps, and that was because the car was real low and it would scrape the bottom, and a car had went across the tracks from the other way, coming towards us, just about a second before we had gotten there. I didn't see the light or hear anything or see anything until after I had stopped on the track.

'Q I see. Now, as you approached the crossing, did you actually come to a stop before you got onto the track?

'A No, I...

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4 cases
  • Ballard v. Rickabaugh Orchards, Inc.
    • United States
    • Supreme Court of Oregon
    • June 16, 1971
    ...Supra, has been severely criticized in an article by Professor, James, 19 Or.L.Rev. 178 (1940). See also, Lindsey v. Southern Pacific Co., 240 Or. 11, 14, 399 P.2d 152 (1965). In the pure classic example for the application of the last clear chance doctrine, the Plaintiff admits his neglige......
  • Brown v. Spokane, P. & S. Ry. Co.
    • United States
    • Supreme Court of Oregon
    • September 20, 1967
    ...a fact question as to defendants' negligence was presented for the determination of the jury. Plaintiff relies upon Lindsey v. Southern Pacific Co., 240 Or. 11, 399 P.2d 152. The facts in Lindsey are quite different from this case. In Lindsey there was evidence from which the jury could hav......
  • Walker v. Spokane, P. & S. Ry. Co.
    • United States
    • Supreme Court of Oregon
    • September 8, 1972
    ...can recover despite the fact that plaintiff was negligent and his negligence was a cause of his injury. Lindsey v. Southern Pacific Co., 240 Or. 11, 14, 399 P.2d 152 (1965). The last clear chance doctrine in Oregon is known as the doctrine of 'discovered peril.' We have repeatedly held that......
  • Goff v. Radi, Inc.
    • United States
    • Supreme Court of Oregon
    • October 16, 1968
    ...defendant failed to use reasonable care to avoid the harm when he knew of and realized the plaintiff's peril. Lindsey v. Southern Pacific Co., 240 Or. 11, 14, 399 P.2d 152 (1965). A more liberal rule, which this court has not adopted, would submit the issue if the defendant had reason to re......

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