Fish v. Southern Pacific Co. , 173 Or. 294 ( 1943 )

Petition for rehearing denied February 1, 1944 ON PETITION FOR REHEARING (145 P.2d 991) Counsel for appellant railroad company have petitioned for a rehearing in this case, and, in support of their petition, have submitted an able brief, contending that our decision does violence to former decisions of this court.

They assert that we erred in holding that the temporary presence of box cars on the adjoining switch track constituted an unusual hazard, and erred also in holding that the jury might properly have concluded that a crossing watchman should have been provided until the transient obstruction was removed. Commenting upon these features of our decision, they inquire, what unusual hazard did these box cars create? They say that they created no such hazard to travelers approaching the crossing from the west. They argue, moreover, that they created no hazard to a traveler approaching from the east, as was plaintiff, in so far as a train coming from the south was concerned, as the view toward the south was unobstructed. Thus, they say, a watchman would have been unnecessary. As to the "limited obstruction" on the north, they contend, relying upon Russell v. Oregon R. N. Co., 54 Or. 128, 102 P. 619, that the hazard was not unusual.

In that case, the conditions constituting unusual hazard were: (1) a curved track, (2) a steep grade toward the track, (3) the noise of roaring waters at a nearby dam, (4) the noise of a nearby sawmill, and (5) echoes from the high walls of a canyon through which the railway passed, causing confusion respecting the direction from which the train was approaching. They quote the following from the decision:

"To require a flagman or automatic signals at every crossing would be to entail upon railroad companies an intolerable burden and expense. To even require such precautions at every crossing where the view of the track is obstructed would be going farther than justice or sound law will permit, * * *".

Counsel refrain from continuing the quotation, which goes on to state:

"but there are situations peculiarly dangerous, such as the one described in the testimony for respondent. In a case where it is claimed that there was an obstructed view of the track, which was upon a heavy descending grade, a highway approaching it upon a like grade, a waterfall and sawmill in the neighborhood, to prevent the trains being heard, and possibly a reverberation in the canyon that was calculated to deceive the ear as to the direction of sounds, we think it is proper for the court to submit to the jury the question whether defendant was negligent in not providing a watchman, or some automatic signal, to warn travelers of the approach of trains, especially where the crossing was not a country crossing, but in a village of 300 inhabitants, and the only crossing by which teams could go from one part of the town to the other, and one which of necessity must have been used by a great number of people. The authorities are not uniform upon this subject, some going even beyond the doctrine that we here hold applicable to the case at bar, and others holding that, unless some statute requires a flagman or automatic warning, a railway company is not negligent in failing to provide one."

The court proceeded to quote, with approval, from Thompson on Negligence, section 1527, to the effect that, where the right to cross the track exists, the railway company must use such reasonable care as ordinary prudence would indicate. Such care must be greater at crossings in a populous town or city than at ordinary country crossings. At a city crossing, or where the travel is great, reasonable care would require a flagman, or gates or bars. Generally, what precautions are reasonably necessary for the safety of the public at such crossings is a jury question. As for the contrary view:

"This doctrine which commits the public safety to the tender mercies of the railroad companies until the legislature intervenes ought not to invoke one word in its favor."

Thompson on Negligence, section 1537.

Again, quoting from the same author (section 1526), with reference to the fact that electric bell signals at railway crossings were then (1909) coming into use:

"* * * Doubtless it will soon become a recognized rule of law that the failure to have such a signal at a crossing, in the absence of any other adequate means of protecting travelers, will be evidence of negligence to go to a jury."

If there is substantial evidence of conditions of unusual hazard, the question is for the jury. We think that there was such evidence in this case. If the situation was such that due care required a flagman, a watchman, an automatic signalling device, or other precautionary measure, then whatever was reasonably necessary should have been provided. This was a busy crossing, not one in "a village of 300 inhabitants".

The distinction between the case of Robison v.Oregon-Washington R. N. Co., 90 Or. 490, 176 P. 594, which is relied upon by appellant, was pointed out in our opinion herein. There it appeared that there was a place of safety from which the driver could have looked "upon the course of the train" before proceeding to cross the track. Here, the presence of such a place of safety is sought to be demonstrated by mathematical calculations, and still is not so demonstrated. While no doubt the case here is a close one, we think that it was properly left to the jury. The obstruction in the Robison case was a hill; in this case it was a train of box cars, placed in position by defendant.

Counsel say that there was no substantial evidence of a failure to give warning, by ringing a bell of the approach of the train. Their argument is that the negative testimony of plaintiff and of one other witness, that they did not hear any bell ring, is not substantial evidence. Plaintiff was listening for the bell, and his hearing was good. We think that the evidence was substantial. Its weight was for the jury.

Counsel contend that plaintiff was contributorily negligent as a matter of law. They say that the distinction between the facts in the instant case and those in Cathcart v.Oregon-Washington R. N. Co., 86 Or. 250, 168 P. 308, (i.e., that the track here was curved, while the track in the Cathcart case was not curved), did not actually exist. They intimate that, while the record in the Cathcart case does not indicate that oral testimony was given that the track was curved, a map and a photograph in evidence showed that, about 500 feet from the point of collision, the track did curve to the south. In the present case, they say, the track was sufficiently straight that, from the crossing, there was a view of 800 feet northward, and, from a point twenty-one feet east of the center of the main track and four feet north of the center line of Mill Street, a view of 712 feet northward. However, in distinguishing the present case from the Cathcart case, we pointed out that here it appeared that there was no place from which the plaintiff could, with safety, view "the course of the train", the supposed zone of safety being evidently insufficient in extent for that purpose. In the Cathcart case, without analysis, the court assumed the existence of a safe observation point. (The court said: * * * there must have been clearance between the two main tracks else the trains could not have passed each other; hence, there was a place, to wit, in this clearance, from which the plaintiff safely could have viewed the track before going upon it." That the width of such clearance is an important factor, especially in the case of a traveler by automobile, was not taken into consideration by the court.) The facts here, as we pointed out, more nearly resemble those in Pokora v. Wabash R. Co., 292 U.S. 98,78 L.ed. 1149, 54 S. Ct. 580, 91 A.L.R. 1049, than those in the Cathcart case. The only manner in which the plaintiff here could have looked up the track, in the direction from which the train was approaching, was to have left his car and proceeded forward on foot, a procedure which might well have been futile, as was observed by Justice Cardozo in the Pokora case. Counsel again insist upon the dictum in the Cathcart case and in Slusher v. Great Southern R.R. Co., 107 Or. 587,213 P. 420, that the presence of the railway track is in itself sufficient warning to the traveler, that the track shouts "beware" every instant, and that no flagman or signalman can add to such warning. This doctrine, without doubt, is applicable to ordinary crossing accident cases, uncomplicated by features of obstruction of the traveler's view, or other features of unusual hazard, but surely it is not to be applied so strictly as that a person who is injured by a train at a grade crossing must be held to have been contributorily negligent as a matter of law, irrespective of the hazardous condition of the crossing, and of the negligence of the railway company in failing to give warning of the approach of the train.

Counsel say that, had the automobile been stopped as much as a second or two before attempting to cross, the accident would not have happened. This is true, but irrelevant. It would have been equally true that the accident would not have happened if plaintiff had not driven his car at all that day, or had taken another route. Counsel argue that: "It is well known to anyone familiar with the operation of an automobile that if the same is standing still and the driver puts his head out the window, his hearing is much more effective than if he remains inside the car and proceeds forward." That may be so, and yet whether or not failure to do so in the present case was contributory negligence was for the jury to decide, and not for the court to declare as a matter of law.

Counsel say that plaintiff could have stopped in front of the box cars, there having been no locomotive attached to them, and thence gone forward to reconnoitre on foot. They say: "If, after stopping, looking, and listening from a point of safety, where such precaution will accomplish the greatest good, the driver neither sees nor hears any approaching train and thereupon proceeds forward and collides with such train, it is time enough to consider whether the driver's case should be submitted to the jury." To follow counsel's argument to its logical conclusion, the court would have to declare, as a matter of law, that, in such a case as the present, the driver must stop his car, go forward on foot to reconnoitre, and then return to his car and proceed over the crossing. As our former opinion pointed out, the weight of authority does not require this. If Fish had stopped at the usual stopping place, it is apparent, assuming the truth of his evidence, that such stopping would not have insured his safety. If we should now declare that there was a duty to stop on the switch track, in front of the box cars, "disconnected from a duty to get out and reconnoitre", we should, we think, be entering "the thickets of conflicting judgments".

Counsel suggest that plaintiff had, besides the choice of going forward without stopping, and that of stopping and getting out to reconnoitre, a third choice, namely, to stop, look and listen, without getting out to reconnoitre. If he had taken such third choice, he could not have looked, unless he had stopped within the so-called zone of safety. Whether or not, under the circumstances, he should have stopped his car in front of the box cars, rather than have done as he did, was, we think, a jury question.

Counsel say: "On all the evidence no reasonable person could believe that there actually were box cars on the siding, or that there was failure to give adequate signals of the train's approach." We think, however, that there was substantial evidence upon both of those questions. It is not within our province to pass upon its weight. Certainly, it was not so incredible that the court should have withdrawn it from the jury.

The petition for rehearing is denied.

BRAND, J., concurs in the result.

LUSK, J., dissents.