Olds v. Hines
| Decision Date | 03 February 1920 |
| Citation | 95 Or. 580,187 P. 586 |
| Parties | OLDS v. HINES, DIRECTOR GENERAL, ETC., ET AL. [a1] |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.
Action by Meryl E. Olds, by Ida M. Williams, his guardian ad litem and next friend, against Walker D. Hines, Director General of the United States Railroad Administration, and others. Judgment for defendants, and plaintiff appeals. Affirmed.
The plaintiff, a young man about 19 years of age, by his guardian ad litem in this action sues Walker D. Hines, as Director General of the United States Railroad Administration, and Jones and Amundson, the engineer and fireman in charge of a train of the Spokane, Portland & Seattle Railway Company, for damages on account of an injury which he received in a collision between a train on that road and a motortruck which he was operating at the time. The accident occurred in the city of Portland where the railroad track crosses Fifteenth street. The ground of negligence charged against the defendants is substantially that the train, consisting of a locomotive, tender, and three passenger coaches, was operated at a high, dangerous, and reckless rate of speed, namely, at the rate of 25 miles an hour, and that the defendants neglected to keep a proper lookout for vehicles crossing on Fifteenth street, or to warn the plaintiff by ringing a bell or blowing a whistle, or by any other means, of the approach of the train. It is said substantially in the complaint that the men in charge of the engine could have seen the truck which the plaintiff was driving, as it was approaching and going upon the crossing, had they kept a proper lookout, and that there are no obstructions whatever between the crossing and 500 feet along the track in the direction from which the engine was coming to the place of collision.
The answers of the several defendants traverse the complaint as to all charges of negligence, and assert that the plaintiff drove his truck upon the track without taking such precautions as a reasonably prudent individual under like circumstances would take to ascertain whether or not there was a train coming. This in turn was traversed by the reply.
At the close of the plaintiff's case the trial court entered a judgment of involuntary nonsuit against the plaintiff, and he appeals.
F. M De Neffe, of Portland (Jay Bowerman and M. L. Pipes, both of Portland, on the brief), for appellant.
Charles A. Hart, of Portland (Carey & Kerr, of Portland, on the brief), for respondents.
BURNETT J. (after stating the facts as above).
A brief résumé of the testimony is here set down: Fifteenth Sixteenth, and Seventeenth streets in Portland run due north and south. The Spokane, Portland & Seattle Railway track on which the accident happened comes from the northwest on a slight curve to the left across these streets. There are some docks situated on the bank of the Willamette river near the foot of Fifteenth street. The plaintiff was an experienced truck man and quite familiar with the crossing and the surroundings, having driven over the tracks there for about a year before the accident. On the day in question he had gone with a helper to the docks, loaded some heavy lumber upon the truck, and started south along Fifteenth street. There are several railway tracks between the dock and the place of the accident, two of which are main tracks, the one in question and another belonging to the Northern Pacific Railroad Company. The other tracks are switch lines to various points on the river front. The distance between the Northern Pacific track and that of the S., P. & S.
Ry where the accident happened is 35 feet. All the way between these tracks there is a clear and unobstructed view along the S., P. & S. track to Seventeenth street, a distance agreed upon by the parties to be 600 feet. The train which injured the plaintiff was coming from the northwest along the S., P. & S. track towards Fifteenth street. The plaintiff testified in substance that he was driving the truck very slowly on account of the roughness of the roadway; that he looked and listened 12 or 15 feet away from the S., P. & S. track; that there was nothing in sight in either direction; and that he went ahead. All this time he could see to the Seventeenth street crossing. He said he was listening continually, was paying all of his attention to his driving, and was just moving. He knew at the time that the track was a main line and had seen main line trains passing on it many times. He was asked this question:
He declared there was nothing to prevent his seeing the train if it had been there, and that he could see to the Seventeenth street crossing. He states in substance that the first he saw of the train was when it was about 25 or 30 feet from the truck, and at the time the front wheels of his truck were just about going over the south rail of the track. The witness Carter said that the plaintiff was going not over 2 miles an hour. Doty, who rode with the plaintiff, thinks the truck was not going so fast as 2 or 3 miles an hour; that it was going slowly and could have been stopped instantly. Carter also stated that he saw the train 30 or 40 feet from the truck and judged that the engine was going between 20 and 30 miles an hour. Harris first saw the engine before it struck the truck, about 125 feet from the crossing. Lillian Davidson, a typist who sat at an open window in the second story of a canning establishment near the scene of the accident, testified that she had a good view of the situation, and first saw the train near the second post from the crossing. By the plat introduced in evidence this post is set down as 191 feet from the crossing. She said the train was going about 30 miles an hour, and that when she looked the front end of the truck was just about beginning to go on the track. N. P. Jensen was traveling south, driving a truck on Seventeenth street. As he approached the track from the north a flagman signaled him to stop when he was about 15 feet from the track. Instead of stopping immediately, as he could at the speed he was traveling, he coasted up to within about 5 or 6 feet from the track and halted there. He says that the train passed him immediately, going about 25 miles per hour. He explains that he did not wait for the last coach to go by, but, as his custom is, as the first coach went by, he started his truck, so that he could pull right on back of the car, to save time. He testifies that, when he started to go over the Seventeenth street crossing, he looked towards Fifteenth street, and saw the Olds truck then about 7 or 8 feet back from the track. The witness Yost was seated on his wagon some distance east of the crossing and saw the train coming just prior to the collision, as he says, traveling about 30 miles an hour.
A motion for nonsuit is in effect a demurrer to the plaintiff's evidence, an objection in purport that it is not sufficient to prove the allegations of the complaint, or to show that the plaintiff was entitled to recover. It is also true as a rule of law that, if the evidence of the plaintiff, when fairly judged from the standpoint of a reasonable man, shows that he himself was guilty of negligence which contributed to his injury, he cannot recover. We remember also that it is a binding principle that the plaintiff is entitled to the benefit of whatever his testimony tends to prove, although his witnesses may contradict each other, and that, if any reasonable construction of the evidence on his behalf, or any part thereof, shall fairly tend to show that he is entitled to recover, it is the duty of the court to submit the question to the jury. On the other hand, if there can be no reasonable conclusion other than that the plaintiff himself was remiss in his duty at the time of the accident, it is incumbent upon the court so to declare, and order a nonsuit. The judge cannot evade his duty by sending such a case to the jury, thus inviting it to render a verdict which would be clearly against the testimony.
One of the principal questions in the case is whether or not the train was in sight of the plaintiff in time for him to stop in safety before going upon the track. We must bear in mind that he says he looked both ways along the track, with an unobstructed view as far as Seventeenth street, a distance of 600 feet, when he was yet 12 or 15 feet back from the S., P & S. track, but that he did not look again until the front wheels of his truck were on the track and the train was within 30 or 40 feet of him. The complaint declares that there was no...
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