Sargent v. Southern Pac. Transp. Co.

• Decision Date: 29 December 1972
• Citation: 504 P.2d 729,264 Or. 435,96 Or.Adv.Sh. 353
• Parties: Waitie J. SARGENT, Administrator of the Estate of Douglas Sargent, Deceased, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Respondent(two cases).
• Court: Oregon Supreme Court

Page 729

504 P.2d 729

264 Or. 435

Waitie J. SARGENT, Administrator of the Estate of Douglas

Sargent, Deceased, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware

corporation, Respondent(two cases).

Supreme Court of Oregon.

Argued and Submitted Nov. 6, 1972.

Decided Dec. 29, 1972.

John Gordon Gearin, Portland, argued the cause for appellant. With him on the briefs were Davis C. Landis, and Gearin, Landis & Aebi, Portland, and Anderson, Richmond & Owens, Eugene.

James H. Clarke, Portland, argued the cause for respondent. With him on the brief were Robert E. Maloney, Jr., and McColloch, Dezendorf, Spears & Lubersky, Portland.

Before McALLISTER, P.J., and DENECKE, HOLMAN, TONGUE, HOWELL, and BRYSON, JJ.

HOLMAN, Justice.

Plaintiff is the administrator of the estate of both Diane and Douglas Sargent, husband and wife, who were killed in a collision at a railroad crossing between an automobile, driven by Douglas, and defendant's freight train. Plaintiff filed a separate case for damages for the death of each decedent and the two cases were consolidated for trial. Plaintiff appealed from judgments of involuntary nonsuit given at the completion of plaintiff's cases in chief.

The principal issue is whether the crossing was extrahazardous. The issue is raised in different ways by several assignments of error, but whether prejudicial error was committed is determined by the manner in which this court disposes of the principal issue.

The accident occurred at night, a few miles north of Eugene, where defendant's main line intersects Meadow View Road at approximately a right angle. Plaintiff's decedents were traveling west, the train north, at the time of the accident. Both the road and the train track are straight for a considerable distance each side of the crossing. The view is completely unobstructed by trees, buildings, or anything of similar nature. The land is perfectly flat. Plaintiff's decedents, as they approached the crossing from the east, were faced first with a railroad crossing sign installed by the county and then by an unreflectorized cross buck at the track. There is no evidence of the distance of the county sign from the track, but the parties seem to assume, and the case was tried, as if the distance was 275 feet. Pacific Highway 99--W parallels the train track at a distance of approximately three quarters of a mile to the west.

The vehicle in which plaintiff's decedents were riding struck the side of defendant's train while the train was being operated at 35 miles per hour, and it hit the coupling between two box cars which were the 22nd and 23rd units of a freight train of 102 cars pulled by two locomotives.

The atmospheric visibility was good except for spots of patchy ground fog, but there was no evidence of any such fog upon the road to the east of the track at the time of the accident. Plaintiff strenuously contends there was evidence of fog, but a careful examination of all the evidence discloses the contrary. The engineer of the train testified there was occasional patchy fog, but he said Meadow View Road was clear to the east of the track. A deputy sheriff said he ran into fog on his way to the scene of the accident as he approached the crossing from the west. However, this must have been at a time considerably later than the accident, because he said the ambulance was already there by the time he arrived. The first person to arrive at the scene of the accident was a resident who lived a quarter of a mile to the east of the crossing who heard the impact and went immediately to the scene in his automobile. He testified the visibility was clear when he approached the track from the east.

Pictures taken the same evening, after the accident, indicate the surface of the road was almost dry with only a few small damp spots. Two parallel skid marks were shown to lead to the track from the east. There is no evidence of their length, but the case was tried as if they were 175 feet long. The designated speed for Meadow View Road was 55 miles per hour.

A former Public Utility Commission investigator, who investigated the accident for the Commission, and a civil engineer with experience in grade crossings, who examined the crossing shortly before trial, both testified, in effect, that in their opinion the crossing was extrahazardous.

Whether a crossing is extrahazardous is not determined by the opinion of a witness, expert or otherwise, but by whether the crossing at the time of the accident met the requirements of such a crossing as specified by the opinions of this court. The important factor is not whether the witnesses have an opinion that the crossing is extrahazardous but, rather, the reasons they give for such an opinion.

The Public Utility Commission investigator gave the following reasons for his conclusion:

1) the designated highway speed;

2) the observed speed of vehicular traffic on Meadow View Road;

3) the amount of train traffic over the crossing (25 trains per day);

4) the allowable speed for trains at that location (70 miles per hour for passenger; 60 miles per hour for freight);

5) the lack of contrast between the background and the train during nighttime hours;

6) the accident record between trains and vehicles (there was no evidence of any such record for this crossing);

7) the lack of striping down the center of the highway which allowed vehicles to overtake and to pass other vehicles at the crossing;

8) the angle of the crossing (80 degrees);

9) the lack of illumination at the crossing;

10) the lack of illumination of the train;

11) the adverse weather in Oregon during the wintertime resulting in poor visibility and stopping conditions;

12) people who use crossings regularly are inclined to ignore them;

13) the visibility was so good that drivers of vehicles would not be inclined to look carefully;

14) the absence of white clearance marks requiring vehicles to stop at least ten feet from the track;

15) the advance crossing sign (installed by the county) was too small and too close to the track;

16) the absence of railroad warning markers on the roadway in advance of the crossing.

The civil engineer testified that, in his opinion, the crossing was extrahazardous only at night. He enumerated the factors upon which his opinion was based as follows:

1) the lack of illumination at the crossing;

2) the lack of protective gates to keep automobile traffic off the crossing while trains were passing;

3) a false horizon visible above the train created by the lights of vehicles using Highway 99--W in the distance which gave the impression that there was nothing between the driver of a vehicle approaching from the east and Highway 99--W.

An extrahazardous crossing has been defined by this court as being one which is so dangerous that a reasonably prudent motorist cannot safely use it unless the railroad takes measures in excess of those usually taken to warn motorists. ¹ If a crossing is not extrahazardous the railroad owes no duty to a motorist to put out flags, or to put up automatic gates, lights, or other protective or warning devices not normally used at grade crossings. In determining the kinds of danger which must exist to qualify a crossing as being extrahazardous, this court has principally relied on factors which usually, but not always, revolve around the impairment of the motorist's view of the train. These factors usually fall within three categories:

1) the adverse physical condition of the terrain;

2) bad weather; ²

3) conditions which tend to distract the motorist's attention.

A consideration of the factors enumerated by the experts reveals that some of the factors involve the lack of various warning devices which are required only if a crossing is extrahazardous. All but one of the other factors either were not present at the time of the accident or are not of the kind which this court has held to be sufficient to classify a crossing as being extrahazardous.

One of the alleged factors, the claim that a false horizon was created by the lights of the vehicles using Highway 99--W, deserves comment. The witness testified that such a condition was created because the lights were visible Above the train by motorists approaching the crossing from the east on Meadow View Road. If this were a fact, we doubt it would be sufficient to make the crossing extrahazardous. However, we do not have to decide the question because the testimony is incredible when it is considered in connection with the extensive pictures of the terrain, which are in evidence. The pictures show an exactly level terrain and reveal how physically impossible it would be for a motorist approaching the crossing from the east to see over the top of box cars the lights of vehicles on Highway 99--W. If anything, such lights would form a background which would be interrupted by the passing of railroad cars, thus acting as a warning to motorists.

As we previously indicated, plaintiff also urges there was evidence of fog which impaired the decedents' view. There is no such evidence. As a whole, the evidence indicates about as visible and nonhazardous a country crossing, except for darkness, as it would be possible to find. We recognize that all grade crossings constitute some hazard. The utility of railroads and the relative difficulty in controlling and maneuvering a train as compared with an automobile have caused the law to give railroads a position of preference. It may be that the law will someday be re-evaluated in the light of changing conditions and values. Neither this court nor the...