Robison v. Oregon-Washington R. & Nav. Co.

• Citation: 90 Or. 490,176 P. 594
• Parties: ROBISON v. OREGON-WASHINGTON R. & NAV. CO. [*] CLIFFORD v. OREGON-WASHINGTON R. & NAV. CO.
• Decision Date: 17 December 1918
• Court: Supreme Court of Oregon

176 P. 594

90 Or. 490

ROBISON v. OREGON-WASHINGTON R. & NAV. CO. ^[*] CLIFFORD v. OREGON-WASHINGTON R. & NAV. CO.

Supreme Court of Oregon

December 17, 1918

In Banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

Two actions, by Alonzo V. Robison and by H. H. Clifford, as administrator of the estate of Frank Weygandt, deceased against the Oregon-Washington Railroad & Navigation Company a corporation. There were judgments for plaintiffs, and defendant appeals in each case. Judgment in each case reversed, with directions.

Frank Weygandt and Alonzo V. Robison were driving together in an automobile from Meridian, Idaho, to Battle Ground, Wash. They were compelled to travel on the county road in Baker county leading through the Burnt River canyon. The defendant maintains its railway tracks through the same defile. Owing to the topography, the railway and highway frequently cross each other in that region. Weygandt was driving the machine and at one of these crossings there was a collision between it and a freight train of the defendant, resulting in the death of Weygandt and the injury of Robison. The administrator of Weygandt brought action for damages accruing to the estate from the death of the decedent and the destruction of the automobile, and Robison brought action on his own account. By consent of the parties the cases were tried simultaneously before the same jury.

The charge of negligence was fourfold, in substance: That the defendant failed to maintain a well-equipped warning bell or other signaling device at or near the crossing; that it failed to warn the plaintiffs of the train's approach, by blowing a whistle or ringing a bell; that it did not keep a lookout on the train for the approach of the plaintiffs from the highway towards the crossing; and, lastly, that it operated the train at a dangerous rate of speed. The charges of negligence and damages are traversed by the answers. Defending affirmatively, the answer to the complaint of Robison sets forth in substance that he and Weygandt were engaged in a joint enterprise; that the automobile was under their joint control, and without stopping, looking, or listening, without regard for their own safety or the safety of each other, they drove upon the railway track directly in front of the train; and that whatever injury either of them sustained was due to their own recklessness and carelessness.

As an additional defense to Robison's complaint, the answer sets up in substance that he was riding in an automobile driven by Weygandt, sitting by his side; that the plaintiff had assumed the duty of aiding the driver by keeping a lookout, and that as the car was approaching the railroad crossing Robison negligently failed to keep a careful or sufficient lookout, and failed negligently to look for the train or to warn the driver of its approach, and permitted him to drive upon the track without stopping, looking, or listening, so that whatever injury he sustained therein was due to his own negligence in that respect. The affirmative matter in the answer to the administrator's complaint is that Weygandt was operating the car himself, and drove upon the track without stopping, looking, or listening, so that his own negligence brought about the accident. The new matter in the answers was traversed. The trial resulted in verdicts and judgments for the plaintiffs, from which the defendant appeals.

John F Reilly, of Portland (A. C. Spencer, of Portland, and James H Nichols, of Baker, on the brief), for appellant.

C. H. McColloch, of Baker (Oswald West, Claude C. McColloch, and D. A. Norton, all of Portland, on the briefs), for respondents.

BURNETT, J. (after stating the facts as above).

In the vicinity of the crossing the railroad track runs practically north and south. South of the crossing in question the county road runs toward the north, substantially parallel with the track on the west side thereof to a point near the crossing, when it passes eastward over the rails diagonally and continues on its northerly course again about paraliel with the rails. The automobile was being driven toward the north and the train was proceeding south. About 1,000

feet south of the crossing the wagon road passes over a hill from the summit of which the plaintiff Robison says they could see the crossing and the track beyond that to the station at the village of Weatherby, except about 150 to 200 yards thereof next north of the crossing. He says that as they proceeded down the hill the view beyond the crossing was entirely obscured by an intervening point of a hill; that although they both looked and listened; and within 60 feet of the crossing slowed down the speed of the car to a rate not exceeding 6 miles an hour, they could not hear the train approaching or see it until the front of the machine was within 3 or 4 feet of the rails; and that the train was then coming at a good rate of speed, said by others to be 25 or 30 miles an hour, and struck the automobile about the front door on the left-hand side. Robison testified in substance that just as he saw the train he attempted to jump out of the car. The impact of the locomotive threw him upon the other side of the track, and carried Weygandt and the machine about 1,000 feet, killing him and wrecking the automobile. At the crossing was the usual cross-arm crossing signal inscribed, "Railroad Crossing. Look Out for the Cars."

After leaving the crest of the hill, the wagon road descends until, about 300 feet from the crossing, it is lower than the railroad tracks, and from there approaches the rails on a very slight ascending grade, but almost level. Other parties who were following in another car testified that they did not hear any noise of an approaching train, or any whistle or bell. The trainmen and other witnesses attending a ball game near the station all testified that the engine bell was rung continuously from there to the crossing, and that the whistle was sounded, not only for the approach to the station, but also for the crossing. The train was composed of 52 freight cars and was approximately half a mile long.

At the close of all the evidence the defendant moved the court to direct a verdict for the defendant in both cases, on the ground that the plaintiff had not offered sufficient evidence to entitle the cause to be submitted to the jury; that there had been no evidence of any negligence on the part of the defendant; that the plaintiff's decedent in the one case, and the plaintiff himself in the Robison case, each was guilty of negligence contributing to his injury; and, finally, that the evidence, considered in the light of physical conditions, shows that, if the precautions required by law had been observed, the travelers would have seen the approach of the train in time to avoid the accident, and that, if they had listened, they would have heard it in time to escape injury. The motions were denied, and this is the principal error relied upon by the defendant. Some other questions are raised about the instructions to the jury, but we shall first consider the matter of directing a verdict.

It is elementary that a verdict cannot be directed if there is any evidence sufficient to be submitted to the jury on the issue involved. The principal contention of the defendant under the motion is, as to Weygandt, that he was directly guilty of contributory negligence resulting in his death, and, as to Robison, that the negligence of Weygandt was imputable to him, because they were engaged in a joint affair, and likewise that he himself was negligent in failing to warn Weygandt of the train and the proximity of the crossing, or to protest against his driving upon the track under the circumstances disclosed by the evidence. The duty of the traveler to use reasonable diligence to avoid a collision at a crossing is equally imperative with that same duty incumbent upon those who operate the train, with the qualification that the train has the right of way and the preference in passing the point where the track intersects the highway. Each party owes this duty to the other as well as to the traveling public that might be affected disastrously by such a mishap. To excuse a traveler from the harmful consequences to which his own breach of this duty contributes would be to make of the company an insurer against all and all manner of casualties, whether caused in whole or in part by the fault of the injured party or not. All the risk would be imposed on one of the parties, whereas the law and reason say that the reciprocal duty of reasonable care to avoid a collision rests alike on both. In most cases the question of negligence is one of fact to be decided by a jury. This is taught by such cases as Palmer v. P. R., L. & P. Co., 56 Or. 262, 108 P. 211.

Describing the collision, Robison testified as follows:

"Well, the best I can recollect, the way I know it, the train was right there, not more than, I guess, 100 feet, and we were so close to the track there was not time to stop the car, and not time to get across, and the engine struck right on the front door on the driver's side. * * * I immediately dived for the door on my side, and just got my head under the top when it hit.

"Q. Could you tell at what speed the train was traveling? A. It was going at a good rate of speed."

Asked:

"Mr. Robison, will you tell the jury about how how far in feet it was from the crossing before you got beyond the bluff so you could see the approaching train?"

-- he answered:

"It seems the front wheels of the car were within 3 or 4 feet from the rail, but we were sitting back further in the front seat."

The witness afterwards said that the train was from 80 to 100 feet distant when he had his first view of it. We quote also...