Morser v. Southern P. Co.

• Decision Date: 13 February 1924
• Citation: 110 Or. 9,222 P. 736
• Parties: MORSER v. SOUTHERN PAC. CO. ET AL.
• Court: Oregon Supreme Court

222 P. 736

110 Or. 9

MORSER v. SOUTHERN PAC. CO. ET AL.

Supreme Court of Oregon

February 13, 1924

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Charles M. Morser against the Southern Pacific Company and another. Judgment for plaintiff, and defendants appeal. Reversed.

Ben C Dey and Roscoe C. Nelson, both of Portland, for appellants.

W. E Farrell and Davis & Farrell, all of Portland (Henry E McGinn, of Portland, on the brief), for respondent.

BURNETT J.

The plaintiff sues for damages resulting from an injury inflicted upon him by one of the defendant company's trains while, as a pedestrian, he was crossing its track. As to the place of the accident, it appears by the record that the track runs parallel to the west bank of the Willamette river. The plaintiff, at the time, was living in a houseboat on the river east of the railroad track, and had resided there for about eight years prior to the accident. During all that time he crossed the track daily, going to and from his work, and was quite familiar with the situation and surroundings. He alleges that on the morning of October 18, 1921, while he was crossing the track, a train operated by the defendant company and its codefendant motorman, Schellenburg, ran into him and struck him, and that at the time of the accident there was an extremely heavy fog along the right of way where the accident occurred. He charges negligence against defendants as follows:

"Plaintiff alleges that defendants were then and there careless and negligent in the following particulars, to wit:

"(a) That said defendants then and there carelessly and negligently operated said train, in view of the character of the crossing, and the heavy fog then and there existing at said place, at a high and reckless rate of speed, to wit, 30 miles per hour.

"(b) That said defendants carelessly and negligently failed to sound any warning or alarm in approaching said intersection to warn and advise individuals crossing said right of way at said intersection.

"(c) That said defendant then and there carelessly and negligently failed to have its train under control."

After describing his injuries he concludes with the usual demand for judgment against the defendants. By the answer the negligence is denied, as well as some other matters in the complaint not necessary to be further described. Giving their version of the affair, the defendants say that at about the hour of 5:45 o'clock in the morning of October 18, 1921, they were operating a car along said track; that it was dark at the time, but the headlight on the car was burning, so that it could be seen a long distance in front. Contributory negligence is charged against the plaintiff in this language:

"That said engineer blew the whistle and rang the bell for the station at Fulton, and the motorcar then proceeded toward Cemetery station; that when the car was but a short distance from the point where said lane crosses Southern Pacific Company's right of way, plaintiff suddenly and unexpectedly came out on the railroad track in front of the car; that the engineer, seeing plaintiff, immediately put on the brakes, bringing the car to a stop in the shortest distance possible, but that the distance between plaintiff and the car at the moment plaintiff stepped onto the track was so short that the engineer was unable to avoid an accident; that plaintiff was struck by the right front corner of the motorcar.

"That plaintiff was thoroughly familiar with the existence of said lane crossing, and well knew that trains ran on said track, but he nevertheless approached and went upon said track at the time of the accident hereinbefore mentioned without exercising due care in regard to the danger of being struck by trains, and in a careless, negligent, and reckless manner in the following particulars, to wit: That plaintiff attempted to cross said railroad track without stopping, looking, or listening for the approach of cars along same; that plaintiff paid no attention to the blowing of the whistle and ringing of the bell on the motorcar for Fulton station, although the sound of same was within audible distance of plaintiff; that plaintiff totally disregarded the noise of the approaching car; that plaintiff gave no regard to the rays of the headlight on the car, which rays were focused on the lane crossing while the car was yet a considerable distance therefrom."

The concluding paragraph of the answer attributes to his negligence all the injuries plaintiff may have sustained in the accident. The new matter of the answer is traversed in material particulars by the reply. The plaintiff was the only witness on his behalf who described the accident. The following are excerpts from his testimony:

"I went up the steps and went to the gate, opened it, listened, and looked in both directions, heard nothing, and went through and closed it. After going part way, I looked again to the north and to the south and seen nothing. As I was to step on the track I looked to the north, and I saw an object glance before me, it looked like a shadow; but, being such a dense fog and at the rate of speed it was traveling, I could not judge the distance of how far it could be away from me. I realized it must be a car and hastened to cross the track, and as I was leaving the track on the opposite side I was struck by the far car side of the car, in the hip.

"Q. Now you spoke of passing out of the gate. I will just get you to tell the jury again about what you did in the way of looking for the car. A. Before leaving the gate I looked in both directions, listened, heard nothing. After taking a couple of steps, I listened again and looked and there was nothing in sight. It was a dense fog, and I started on to cross the track, going to work. Realizing there was an object in front of me as I was about to step on the track, I looked and there was something pressing down on me, presumably to be the car. As I had no time to turn, I jumped across and was leaving the track on the opposite side when I was struck. * * *

"Q. Now, the distance that the car ran after it hit you, and your observation as a street car man, how fast would you say this car was running? A. Thirty miles, or better. * * *

"Q. Well, you don't want to tell the jury you would step on the track, after seeing it, unless you did have some idea how far it was, do you? A. I should judge better than 40 or 50 feet.

"Q. Better than that; you mean more than that? A. Yes, sir; more than that.

"Q. You don't think it could have been

less than 40 or 50 feet? A. I should not think so; no, sir.

"Q. You knew it would take you a couple of steps to get over that track, didn't you? A. Yes; and I hastened my feet to get across.

"Q. Did it occur to you to step back and stop at that time? A. I didn't have time to step back. It was my object to get across.

"Q. Well, if you saw that coming as you were about to step on the track, what would have prevented you from stepping back; no obstruction? A. No obstruction; but you just had an idea it was far enough away to get across. "Q. You thought you could get across? A. Yes, sir.

"Q. That is why you didn't step back? A. Yes.

"Q. You thought you could get across; that was your judgment? A. Yes."

At the close of the plaintiff's testimony the defendants moved for nonsuit on the grounds that the complaint does not state a cause of action and that the plaintiff's testimony shows him to have been negligent in a degree contributory to his injury and defeating his recovery. The motion was denied by the court. The same question was raised by a motion for directed verdict at the conclusion of all the testimony which was also overruled. The defendants appeal from a judgment on an adverse verdict.

As to the sufficiency of the complaint, in the absence of any showing that the crossing was a public one, or one resting in prescription, or that the plaintiff was more than a bare licensee, it may be well doubted if the defendants owed him any duty beyond refraining from willfully hurting him. Long v. P. Ry. & Nav. Co., 74 Or. 502, 515, 144 P. 462, 145 P. 1068, L. R. A. 1915F, 1151. The complaint does not count on willful injury.

Passing however, to the other branch of the motion for nonsuit, it is to be noted that the substance of the charge against the defendants is that they operated the train so fast and without warning plaintiff of their approach that they could not avoid colliding with him when he appeared on the track. The countercharge of negligence is in substance that the plaintiff so conducted himself as a pedestrian in going upon the track that he could not avoid the collision. We here have two bodies moving towards a point of contact. Each owes reciprocal duties to the other, with this qualification: That the railway company, engaged in the service of the public, and having acquired right of way for its tracks and the operation of trains thereon, has the preference of passage as against an individual, who essays to cross over its track. It is a primary principle, controlling in such cases, that if the plaintiff is shown to be negligent in a manner contributing to the accident, he cannot recover. It is axiomatic that a railroad is a place of danger, and one familiar with the situation, as the plaintiff's testimony shows him to have been, knows full well that it is thus dangerous. If it is negligence on the part of the defendants to approach the place of meeting in such a manner, that they cannot avoid collision, by the same token, considering the right of preference already mentioned, it is negligence for the plaintiff to approach that same point in such a manner that he cannot avoid the collision. The testimony discloses that the track is 4 feet 8 1/2 inches...