Resser v. Boise-Cascade Corp.

• Decision Date: 29 November 1978
• Docket Number: No. 22575,BOISE-CASCADE,22575
• Citation: 284 Or. 385,587 P.2d 80
• Parties: William D. RESSER, Respondent, v.CORPORATION and the Valley & Siletz Railroad Company, corporations, Appellants. ; SC 25420.
• Court: Oregon Supreme Court

Page 80

587 P.2d 80

284 Or. 385

William D. RESSER, Respondent, v. BOISE-CASCADE CORPORATION and the Valley & Siletz Railroad Company, corporations, Appellants.

No. 22575; SC 25420.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 12, 1978.

Decided Nov. 29, 1978.

Bruce Williams, of Williams, Spooner & Graves, P. C., Salem, argued the cause and filed the briefs for appellants.

John S. Stone, of Hayter, Shetterly, Noble & Weiser, Dallas, argued the cause and filed a brief for respondent.

Before DENECKE, C. J., and HOLMAN, HOWELL and LENT, JJ.

HOWELL, Justice.

This is an action for damages resulting from personal injuries and property damage sustained by plaintiff when he collided with a railroad locomotive operated by defendant Boise-Cascade Corporation and its wholly owned subsidiary, defendant Valley & Siletz Railroad Company. The jury returned a verdict finding defendants to have been 63 per cent negligent and plaintiff to have been 37 per cent negligent. Plaintiff's damages were determined to be $129,377, and judgment was entered against defendants for 63 per cent of this sum, or $81,508.13. Defendants appeal.

The accident occurred on June 21, 1973, at a railroad crossing in Polk County. The road on which plaintiff was travelling intersects the railroad track at a right angle. Plaintiff testified that as he approached the crossing, he slowed his speed to approximately 45 miles per hour, and when he came within 400 feet of the crossing he slowed his speed again to approximately 40 miles per hour. Plaintiff first saw the train approximately 100 feet from the crossing. He applied his brakes, but his speed carried him into the side of the engine.

Plaintiff claimed his view of the approaching train was obstructed by a line of trees, shrubs, and bushes between the highway and the railroad tracks. Plaintiff also testified that he heard no warning from the train immediately prior to the collision.

The point at which the train crew saw plaintiff's truck, the speed of the train, and the point at which the engineer applied the brakes are all subject to dispute. Except for minor inconsistencies, the crew members generally agreed that the train was travelling between 8 and 10 miles per hour at the time the crew realized plaintiff was not going to stop, and that the engineer then applied the brakes immediately. Plaintiff, however, argues that this testimony is inconsistent with the distance that the train travelled beyond the point of impact.

On this evidence, the trial court concluded that the question of the relative fault of the parties should be submitted to the jury, pursuant to Oregon's comparative negligence law, ORS 18.470. Defendants assign as error: (1) the trial court's refusal to direct a verdict in favor of defendants; (2) the trial court's failure to instruct the jury that plaintiff was negligent as a matter of law; and (3) the trial court's instructing the jury that the railroad had forfeited its right of way. The three assignments will be considered separately.

1. Defendant's Motion for Directed Verdict

Oregon's comparative negligence statute, ORS 18.470, provides in pertinent part:

"Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for death or injury to person or property if the fault attributable to the person seeking recovery was not greater than the combined fault of the person or persons against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the person recovering. * * *."

In Jordan v. Coos-Curry Elec. Coop., 267 Or. 164, 515 P.2d 913, 516 P.2d 472 (1973), we discussed the role of court and jury in cases arising under this statute. We noted that:

"Generally, the apportionment of negligence is for the jury and will not be upset except where it is manifest as a matter of law that the allocation is unreasonably disproportionate." 267 Or. at 165, 515 P.2d at 914, Quoting Skybrock v. Concrete Construction Co., 42 Wis.2d 480, 490, 167 N.W.2d 209 (1969).

Despite our holding in Jordan, defendant claims the trial court in the present case should have directed a verdict for defendants because "the jury's finding of negligence on the part of defendants could be based only on speculation." We disagree.

Plaintiff's complaint contained four specifications of negligence: (1) that the train was operated at an unreasonable speed; (2) that the train crew failed to keep a proper lookout; (3) that the engineer failed to apply the brakes in a timely manner; and (4) that defendants failed to properly maintain their right of way. In analyzing the evidence to determine whether or not there existed a question of fact as to any of these specifications, the trial court was required to view the evidence most favorably to the plaintiff, giving him the benefit of every inference that could be drawn from the evidence. Denley v. Mutual of Omaha, 251 Or. 333, 445 P.2d 505 (1968). If reasonable minds could differ as to the relative fault of the parties on any of plaintiff's specifications of negligence, the motion for a directed verdict was properly denied.

Plaintiff's first three specifications can be considered together. Defendants' engineer testified that he first saw plaintiff's truck approaching the crossing when the train was 500 to 600 feet away from the crossing. It was not until the train was 100 to 150 feet from the crossing, however, that the engineer claimed he applied the emergency brake. The evidence showed that after the collision with plaintiff, the train continued on and came to rest 135 feet beyond the point of impact. Plaintiff testified that he did not hear any warning from the train immediately prior to the collision, but that he did hear a loud burst of air, similar to the sound emitted by the train's braking system, immediately after the collision. The engineer told the investigating police officer that under normal conditions the train, composed of the number of cars it was and travelling 15 miles per hour, could be stopped in 150 feet.

From this evidence, the jurors might reach a number of conclusions. They might conclude that the train crew failed to exercise due care in following the progress of plaintiff's truck and that no proper lookout was maintained. Alternatively, they might find that if the operators did see plaintiff in time to stop, they were negligent in waiting to apply the brake until it was too late. Finally, they might conclude that in light of the distance the train travelled after impact, the speed of the train was unreasonable under the circumstances. Whichever of these conclusions the jury might draw, we cannot say that they are so unreasonable as to be "based only on speculation."

Of course, the mere fact that defendants may have been negligent does not by itself justify the trial court in submitting the case to the jury. Under ORS 18.470, it must appear that defendants' negligence was equal to or exceeded any negligence attributable to plaintiff. It is clear in the present case that plaintiff was not entirely free from negligence, ¹ and the jury so found. Nevertheless, in light of the evidence reviewed above, we believe reasonable minds could differ over the relative fault of the parties, and we cannot say that "it is manifest as a matter of law" that plaintiff's negligence exceeded defendants'. Jordan v. Coos-Curry Elec. Coop., supra at 165, 515 P.2d at 914.

A different question, however, is presented by plaintiff's allegation that the defendants negligently failed to maintain the condition of their right of way. The evidence showed that a line of trees running parallel to the railroad tracks ended 300 feet from the crossing. For those last 300 feet, brush, grass, and weeds stood 4 to 5 feet tall. Plaintiff contends that defendants' failure to trim back this vegetation prevented him from seeing the train and prevented the crew members from seeing him. Defendants' locomotive, however, stood over 13 feet tall, and plaintiff offers no explanation of how brush and grass that was 4 to 5 feet tall could have concealed a 13-foot tall locomotive. ² Absent some additional evidence of causation, we agree with defendants that the trial court should not have submitted the specification of negligence to the jury. ³

2. Defendants' Requested Instruction

Defendants next contend that the trial court erred in refusing to instruct the jury that plaintiff was negligent as a matter of law. Defendants correctly note that even in cases where the court cannot say as a matter of law that plaintiff's negligence exceeded defendant's, it still may conclude as a matter of law that plaintiff was negligent in some respect. In such cases, the court should instruct the jury that it must find plaintiff at least partially negligent, but that plaintiff may still recover if his negligence was not greater than defendant's. See Sofich v. Hill, 277 Or. 327, 560 P.2d 633 (1977). ⁴

At the time the accident occurred, ORS 483.104 provided in part that:

"Any speed in excess of the speeds designated in this section * * * shall be prima facie evidence of violation of ORS 483.102 (the basic speed rule). The speeds designated in this section are:

"(1) Twenty miles per hour: * * *

" * * *.ty

"(b) When approaching within 100 feet of a grade crossing of a railway, interurban railway or street railway where the driver's view of the crossing or of any traffic on such railway within a distance of 400 feet in either direction is obstructed."

Plaintiff's own testimony established that he was travelling 35 to 40 miles per hour at a point about 100 feet from the crossing. Plaintiff's testimony also established that a line of trees extending to a point 300 feet from the railroad crossing impaired his view. Defendants contend that plaintiff was therefore in violation of the basic speed rule at the time the accident occurred, and that under the...