Trenholm v. Southern Pac. Co.

• Decision Date: 16 February 1925
• Docket Number: No. L-9458.,L-9458.
• Citation: 4 F.2d 562
• Parties: TRENHOLM v. SOUTHERN PAC. CO.
• Court: U.S. District Court — District of Oregon

4 F.2d 562 (1925)

TRENHOLM v. SOUTHERN PAC. CO.

No. L-9458.

District Court, D. Oregon.

February 16, 1925.

Vinton & Tooze, of McMinnville, Or., for plaintiff.

Ben C. Dey and C. J. Young, both of Portland, Or., for defendant.

WOLVERTON, District Judge.

On the evening of May 29, 1924, at about the hour of 7:30 o'clock, while the Southern Pacific electric red car train (two cars in the train) was traveling southward, and at a point about one-fourth of a mile north of the city limits of McMinnville, it came into collision with plaintiff's automobile at the crossing of the railroad track with the West Side Pacific Highway, upon which plaintiff was traveling at the time, resulting in the wrecking of plaintiff's car and the death of his daughter, Ada Clare Trenholm. Although plaintiff is suing in the capacity of administrator of the estate of his deceased daughter, I have heretofore spoken of him as an individual, not respecting his administrative capacity.

D. P. Trenholm was traveling at the time, accompanied by his wife and three daughters; he sitting on the left-hand side of the car, at the wheel, and his wife on his right in the front seat. His daughters were occupying the back seat, the deceased on the right, a mere child (a girl of ten) in the middle, and another daughter on the left. The deceased was 17 years of age and past. The other daughter was older than she. The railroad track crosses the highway at rather an acute angle, so that one traveling in an automobile, if paying attention to the surroundings, would become aware of the existence of the railroad some time before reaching the crossing. The left side of the automobile was nearest the railroad before crossing the track. The right-hand side afforded, therefore, the better view of the line looking to the fore and beyond the crossing. The crossing was well known to Trenholm. There was situated at the crossing the usual crossing sign, and also a sounding gong or bell, plainly visible for a considerable distance to one approaching the crossing. Plaintiff's car was a Chevrolet, and at the time was without side curtains.

Trenholm testifies, in effect, that when he came on top of the hill at the Miller house he could see the crossing clearly and the warning bell post; that he was traveling on the right-hand side of the road; that the arms were not moving, nor the bell ringing; that he decreased the speed slowly as he neared the railroad track. "When I came on top of the raise," he says, "where I could see — have a good view — I looked to the north and east along the track. I saw no train, and I looked to the crossing, and the warning bell was not ringing, nor the arms moving. I drove on, and turned and looked to the left; and on that side the view was not so clear — it was obstructed by houses, buildings. And at the acute angle that the railroad and highway intersects, it made it necessary to turn around almost back to see back along the railroad track, to see if there was a train coming in from that side. I saw nothing on that side, and heard nothing. So I turned and looked ahead. There was no warning bell ringing, nor arms moving. I looked to the right again, and I saw nothing. I was then about where the Albers sign would obstruct my view. As the warning bell was not ringing, I drove on toward the track. After we had passed beyond the Albers sign toward the track, my little girl that was killed said, `Oh, daddy, there's the train.' And I didn't know which way the train was coming. I looked first to the left — I didn't see it; and then I looked back to the right and saw the train, and set my brake. And, looking ahead, it appeared to me that there was room to stop before I reached the railroad track; but, on account of the acute angle, my left wheel was much nearer the track than the right-hand side, so I discovered that I was going to be unable to stop before I reached the railroad track, and it was a choice between a collision or making it across. I released my brake, and shot across the track as fast as I could make the car go."

He further testified that he was probably 40 feet from the intersection when his daughter said, "Oh, daddy, there's the train," and that the train at the time was about 150 feet distant — he could not tell exactly. He did not know whether the train blew the whistle or rang the bell. He was, at the time he came in view of the crossing, driving at the rate of about 25 miles per hour. When within probably 200 feet of the crossing, he reduced the speed to about 20 miles. There was no further reduction until he set his brake. "I set the brake, and released it immediately," he says; "I think it reduced the speed to probably 15 miles." When asked how far he was away from...