Meaney v. Portland Elec. Power Co.

• Decision Date: 19 November 1929
• Citation: Meaney v. Portland Elec. Power Co., 131 Or. 140, 282 P. 113 (Or. 1929)
• Parties: MEANEY v. PORTLAND ELECTRIC POWER CO.
• Court: Oregon Supreme Court

282 P. 113

131 Or. 140

MEANEY v. PORTLAND ELECTRIC POWER CO.

Supreme Court of Oregon

November 19, 1929

In Bank.

Appeal from Circuit Court, Multnomah County; Dalton Biggs, Judge.

Action by Elizabeth Meaney against the Portland Electric Power Company. Judgment for plaintiff, and from an order granting a new trial, plaintiff appeals. Affirmed.

This is an appeal by the plaintiff from the action of the court granting a new trial and setting aside a verdict in favor of plaintiff in the above-entitled action.

The pleadings are voluminous, and we endeavor to condense them as much as practicable and consistent with a statement of the issues. The plaintiff alleges in substance, after stating the corporate capacity of the defendant, defendant's ownership of the railway in question; that on October 15 1927, the defendant maintained along its railroad a station known as "Courtney Station" situated in Clackamas county, and maintained at and near said station a side track approximately one mile long extending in a southerly direction to the town of Oak Grove, which side track was parallel to and a few feet distant from its main track; that immediately north of said station defendant's railroad intersects and crosses a grade that is known as the Courtney Road and which is a regularly established county road and highway, improved and hard surfaced, and much used by automobiles, motor vehicles, and the traveling public generally.

It is further alleged in the complaint as follows:

"That on the 15th day of October, 1927, at and immediately prior to the time plaintiff sustained serious injuries, as hereinafter particularly alleged, the defendant, its agents, servants, and employees, was in charge of, running and operating a certain logging train consisting of about thirty empty or unloaded cars over and upon its said railroad and from the said city of Portland toward the said Oregon City, and that when said logging train arrived at said 'Courtney Station' the defendant, its agents servants, and employees turned or switched said logging train onto said sidetrack and moved about two-thirds of said train onto said sidetrack but then and there stopped the same and before the entire train had cleared or left the main line or track of said railroad, and the rear portion of said train, consisting of many cars, was thereby stopped and standing upon said main line or track and upon and across the said 'Courtney Road' public highway and thoroughfare; and, that such conditions existed at the time plaintiff sustained serious injuries as hereinafter alleged.

"That each of the cars constituting said train was about 42 feet long and consisted of the front and rear trucks connected by a long centerpiece or running gear, and that said logging train was stopped and standing upon and across said county road and public highway, as hereinabove alleged, and in such manner that said centerpiece or running gear of one of said cars extended entirely across the said county road and public highway; and that such conditions existed at the time the automobile in which the plaintiff was riding collided with and struck said centerpiece or running gear of said logging car, as hereinafter particularly alleged.

"That defendant's said railroad where the same so crosses said 'Courtney Road,' is located upon a depression the said 'Courtney Road,' approaching at down grade both from the east and the west; and that a number of trees are standing close to the said crossing and the right of way of said railroad is narrow with some brush and shrubbery growing thereby and some fencing immediately on the west thereof, which conditions caused the said crossing to be unusually dark and which conditions rendered it very difficult for plaintiff or the driver of the automobile in which she was riding to see the railroad at said crossing or any obstruction thereon, including the said logging train; and by reason of the foregoing facts the said crossing was a more than ordinarily dangerous one for travelers upon the said 'Courtney Road,' including this plaintiff, and especially so for automobile travelers in the nighttime.

"That on the said 15th day of October, 1927, at about the hour of 10:20 o'clock P. M., the plaintiff was riding in an automobile as a guest, and which said automobile was being driven by Kenneth Liebhart in a westerly direction along and upon the said county road and public highway, in a careful and prudent manner, and approached and came to said railroad crossing at a reasonable rate of speed of not to exceed fifteen miles per hour, and that neither the said Kenneth Liebhart nor this plaintiff had any knowledge notice or warning that said logging train was so standing upon and across said county road and public highway, and that neither the said Kenneth Liebhart, driver of said automobile, or this plaintiff did or could see said logging train or said logging car so standing upon and across said county road and public highway, and by reason of the foregoing facts and by reason of the negligence and carelessness upon the part of the defendant, its agents servants, and employees, as hereinabove mentioned, and hereinafter particularly alleged, said automobile was driven by said Kenneth Liebhart to said railroad crossing and collided with and struck said logging car so standing upon and across said county road and public highway with much force and violence, said automobile was broken and demolished, and by reason of said collision the plaintiff was suddenly thrown against the front portion of said automobile and broken pieces thereof struck this plaintiff and by reason thereof plaintiff sustained a serious comminuted fracture of the upper third of the right tibia involving the knee joint, her nose was broken, her chest was crushed and injured, her body, face, head and limbs were bruised, cut and lacerated, her back and spine were wrenched and sprained, she was injured internally and received a serious shock to her nervous system."

Then follow allegations as to the severity of plaintiff's injury, which, the evidence indicates, was serious. The particular items of the negligence of defendant are set forth as follows:

"That said injuries so sustained by the plaintiff were caused and produced by and through the carelessness and negligence and careless and negligent acts and omissions of the defendant, its agents, servants, and employees, in this, that defendant, its agents, servants, and employees, by the exercise of ordinary care and prudence could have known and did know, that said logging train while so crossing and so standing upon and across said county road and public highway, could not be seen by the traveling public approaching the same along and upon said county road and public highway, notwithstanding which, the defendant, its agents, servants, and employees, did carelessly and negligently fail and omit to have any lights at said crossing, and carelessly and negligently failed and omitted to have any person at said crossing to warn and give notice to plaintiff and/or the driver of said automobile that said logging train was so crossing and so standing upon and across said county road and public highway and carelessly and negligently failed and omitted to ring any bell or sound any whistle or give any other notice or warning that said logging train was so crossing said county road and public highway or that the same was so stopped and standing upon and across the same, and carelessly and negligently failed and omitted to have any gate, arms, or other signal indicating the presence of, or warning or notifying the public, including the plaintiff or the driver of said automobile that said logging train was so crossing and was so standing upon and across said county road and public highway; and at the time said injuries were so sustained and at all times immediately prior thereto, plaintiff was riding in said automobile in a careful and prudent manner, and said automobile was being so driven, along said county road and public highway by said driver, in a careful and prudent manner as hereinabove alleged and that neither this plaintiff nor the driver of said automobile had any knowledge or notice that said logging train was so crossing or so standing upon or across said county road or public highway. And, that said injuries were so sustained by and through the said carelessness and negligence and said careless and negligent acts and omissions of the defendant, its agents, servants, and employees, and without any fault whatever upon the part of this plaintiff, or upon the part of the said driver of said automobile, and that said carelessness and negligence and said careless and negligent acts and omissions upon the part of the defendant, its agents, servants, and employees, were the direct and proximate cause of said collision and said injuries so sustained by this plaintiff.

"That the defendant, its agents, servants, and employees, by the exercise of ordinary care and prudence would have known and did know, that the public, including the plaintiff and the driver of said automobile, were accustomed to use said county road and public highway, and were likely to and would be traveling along and upon said county road and public highway approaching and attempting to cross said railroad track at said crossing, and by the exercise of ordinary care and prudence would have known, and did know, that it was extremely dangerous and hazardous to the public and particularly to the plaintiff, to so move and to so stop said logging train over and upon said county road and public highway without any notice or warning and without taking any precautions whatever to protect or prevent the traveling public from driving into and striking against the same."

The defendant...