Olds v. Hines

• Decision Date: 30 March 1920
• Citation: 95 Or. 580,188 P. 716
• Parties: OLDS v. HINES, DIRECTOR GENERAL OF RAILROADS ET AL.
• Court: Oregon Supreme Court

188 P. 716

95 Or. 580

OLDS v. HINES, DIRECTOR GENERAL OF RAILROADS ET AL.

Supreme Court of Oregon

March 30, 1920

Department 1.

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

On petition for rehearing. Rehearing denied, and former opinion affirmed.

For former opinion, see 187 P. 586.

F. M. De Neffe, Jay Bowerman, and Martin L. Pipes, all of Portland, for appellant.

Carey &amp Kerr and Charles A. Hart, all of Portland, for respondents.

BURNETT J.

The burden of the plaintiff's contention in his petition for rehearing is that the former opinion undertook to control the testimony of the plaintiff himself by the testimony of other witnesses as to the visibility of the train before it struck the plaintiff, and that thereby the court assumed to decide a question of fact. The only object in reciting the declarations of the witnesses was to verify the conclusions reached from an analysis of the plaintiff's own testimony. Neither does the opinion intimate that the plaintiff was bound to prove his freedom from negligence.

The design of the former opinion in computing the situation of the train was to assume as a hypothesis the figures most favorable to the plaintiff as disclosed by the testimony. It will be remembered that some witnesses gave figures in their estimate of the speed of the truck and of the train. There was testimony, of course, that the truck was not moving so fast as 2 or 3 miles per hour, but its lowest actual figured rate given was 2 miles per hour. On the other hand, the most rapid speed of the train as stated in the testimony, that at which it would most likely come upon the plaintiff unawares was 30 miles per hour. Analyzing the plaintiff's statement that there was no train on the 600 feet of track over which he had unobstructed vision when he looked at 15 feet from the rails, we find that at 30 miles per hour the train would occupy 13.63 seconds in traversing that 600 feet to the point of collision. In that same 13.63 seconds in traveling at 2 miles per hour the truck would cover 39.52 feet, whereas it was only 15 feet to the rails, and the plaintiff's statement is that the locomotive struck the front wheels of his truck, slued it around and carried it along, leaving it substantially parallel with the track about 25 feet from the crossing. If we increase the speed of the truck to 3 miles per hour, it would carry it 59.97 feet while the train traversed the 600 feet at 30 miles per hour; in other words, at that rate the truck would have cleared the crossing before the arrival there of the train.

Bearing in mind that thus far we are dealing with the figures given in the testimony for the plaintiff and in the most favorable construction of them on behalf of the plaintiff, the conclusion is mathematically inevitable that the train was in the 600-foot open space and visible to the plaintiff, if he had glanced in that direction at any time immediately before he came upon the track. His own testimony is that he did not look again after looking at 15 feet from the rails until his fore wheels were between the rails. It is undisputed that the locomotive struck him. This could not have happened unless the train was there. If we decrease the speed of either the truck or the train or of both of them, it makes it all the worse for the plaintiff's case, because it lengthens the time during which he says he did not look, thus intensifying his negligence. No reasonable man can rightfully say that the train could have traversed the 600 feet of open view without plaintiff's seeing it if he had looked, and that, if he was barely moving, as he says, he could not have stopped in time to let the train pass in safety to himself.

Stafford v. Chippewa Valley Electric R. Co., 110 Wis. 331, 85 N.W. 1036, is substantially a parallel case except that the plaintiff was traveling in a horse-drawn vehicle. The court there said:

"The idea that the car moved from a point where it was out of sight from plaintiff's point of view when she looked, to where it was when the horses became frightened, a distance of some 275 feet, while the horses traveled but about 20 feet, making the speed of the car somewhere about 50 miles per hour or twice as great as the most extravagant testimony of plaintiff's witnesses puts it, is as well within the bounds of the ridiculous, we venture to say, as anything that has heretofore received serious consideration by a trial court or jury. * * * Either the observation was not taken and the testimony to the contrary is false, or the car was seen and

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