Opinion
Argued October 10, 1929
Affirmed November 19, 1929
IN BANK.
From Multnomah: DALTON BIGGS, Judge.
This is an appeal by the plaintiff from the action of the court granting a new trial and setting aside a verdict in favor of plaintiff in the above entitled action.
The pleadings are voluminous and we endeavor to condense them as much as practicable and consistent with a statement of the issues. The plaintiff alleges in substance, after stating the corporate capacity of the defendant, defendant's ownership of the railway in question; that on October 15, 1927, the defendant maintained along its railroad a station known as "Courtney Station" situated in Clackamas county, and maintained at and near said station a side track approximately one mile long extending in a southerly direction to the town of Oak Grove, which side track was parallel to and a few feet distant from its main track; that immediately north of said station defendant's railroad intersects and crosses at grade what is known as the Courtney Road and which is a regularly established county road and highway, improved and hard surfaced, and much used by automobiles, motor vehicles and the traveling public generally.
It is further alleged in the complaint as follows:
"That on the 15th day of October, 1927, at and immediately prior to the time plaintiff sustained serious injuries, as hereinafter particularly alleged, the defendant, its agents, servants, and employes, was in charge of, running and operating a certain logging train consisting of about 30 empty or unloaded cars over and upon its said railroad and from the said city of Portland toward the said Oregon City, and that when said logging train arrived at said `Courtney Station' the defendant, its agents, servants, and employes turned or switched said logging train onto said sidetrack and moved about two-thirds of said train onto said sidetrack but then and there stopped the same and before the entire train had cleared or left the main line or track of said railroad, and the rear portion of said train, consisting of many cars, was thereby stopped and standing upon said main line or track and upon and across the said `Courtney Road' public highway and thoroughfare; and, that such conditions existed at the time plaintiff sustained serious injuries as hereinafter alleged.
"That each of the cars constituting said train was about 42 feet long and consisted of the front and rear trucks connected by a long centerpiece or running gear, and that said logging train was stopped and standing upon and across said county road and public highway, as hereinabove alleged, and in such manner that said centerpiece or running gear of one of said cars extended entirely across the said county road and public highway; and that such conditions existed at the time the automobile in which the plaintiff was riding collided with and struck said centerpiece or running gear of said logging car, as hereinafter particularly alleged.
"That defendant's said railroad where the same so crosses said `Courtney Road,' is located upon a depression, the said `Courtney Road,' approaching at down grade both from the east and the west; and that a number of trees are standing close to the said crossing and the right of way of said railroad is narrow with some brush and shrubbery growing thereby and some fencing immediately on the west thereof, which conditions caused the said crossing to be unusually dark and which conditions rendered it very difficult for plaintiff or the driver of the automobile in which she was riding to see the railroad at said crossing or any obstruction thereon, including the said logging train; and by reason of the foregoing facts the said crossing was a more than ordinarily dangerous one for travelers upon the said `Courtney Road,' including this plaintiff, and especially so for automobile travelers in the night time.
"That on the said 15th day of October, 1927, at about the hour of 10:20 o'clock p.m., the plaintiff was riding in an automobile as a guest, and which said automobile was being driven by Kenneth Liebhart in a westerly direction along and upon the said county road and public highway, in a careful and prudent manner, and approached and came to said railroad crossing at a reasonable rate of speed of not to exceed 15 miles per hour, and that neither the said Kenneth Liebhart nor this plaintiff had any knowledge, notice or warning that said logging train was so standing upon and across said county road and public highway, and that neither the said Kenneth Liebhart, driver of said automobile, or this plaintiff did or could see said logging train or said logging car so standing upon and across said county road and public highway, and by reason of the foregoing facts and by reason of the negligence and carelessness upon the part of the defendant, its agents, servants, and employes, as hereinabove mentioned, and hereinafter particularly alleged, said automobile was driven by said Kenneth Liebhart to said railroad crossing and collided with and struck said logging car so standing upon and across said county road and public highway with much force and violence, said automobile was broken and demolished, and by reason of said collision the plaintiff was suddenly thrown against the front portion of said automobile and broken pieces thereof struck this plaintiff and by reason thereof plaintiff sustained a serious comminuted fracture of the upper third of the right tibia involving the knee joint, her nose was broken, her chest was crushed and injured, her body, face, head and limbs were bruised, cut and lacerated, her back and spine were wrenched and sprained, she was injured internally and received a serious shock to her nervous system."
Then follow allegations as to the severity of plaintiff's injury, which, the evidence indicates, was serious. The particular items of the negligence of defendant are set forth as follows:
"That said injuries so sustained by the plaintiff were caused and produced by and through the carelessness and negligence and careless and negligent acts and omissions of the defendant, its agents, servants, and employes, in this, that defendant, its agents, servants, and employes, by the exercise of ordinary care and prudence could have known and did know, that said logging train while so crossing and so standing upon and across said county road and public highway, could not be seen by the traveling public approaching the same along and upon said county road and public highway, notwithstanding which, the defendant, its agents, servants, and employes, did carelessly and negligently fail and omit to have any lights at said crossing, and carelessly and negligently failed and omitted to have any person at said crossing to warn and give notice to plaintiff and or the driver of said automobile that said logging train was so crossing and so standing upon and across said county road and public highway and carelessly and negligently failed and omitted to ring any bell or sound any whistle or give any other notice or warning that said logging train was so crossing said county road and public highway or that the same was so stopped and standing upon and across the same, and carelessly and negligently failed and omitted to have any gate, arms, or other signal indicating the presence of, or warning or notifying the public, including the plaintiff or the driver of said automobile that said logging train was so crossing and was so standing upon and across said county road and public highway; and at the time said injuries were so sustained and at all times immediately prior thereto, plaintiff was riding in said automobile in a careful and prudent manner, and said automobile was being so driven, along said county road and public highway by said driver, in a careful and prudent manner as hereinabove alleged and that neither this plaintiff nor the driver of said automobile had any knowledge or notice that said logging train was so crossing or so standing upon or across said county road or public highway. And, that said injuries were so sustained by and through the said carelessness and negligence and said careless and negligent acts and omissions of the defendant, its agents, servants, and employes, and without any fault whatever, upon the part of this plaintiff, or upon the part of the said driver of said automobile, and that said carelessness and negligence and said careless and negligent acts and omissions upon the part of the defendant, its agents, servants, and employes, were the direct and proximate cause of said collision and said injuries so sustained by this plaintiff.
"That the defendant, its agents, servants, and employes, by the exercise of ordinary care and prudence would have known and did know, that the public, including the plaintiff and the driver of said automobile, were accustomed to use said county road and public highway, and were likely to and would be traveling along and upon said county road and public highway approaching and attempting to cross said railroad track at said crossing, and by the exercise of ordinary care and prudence would have known, and did know, that it was extremely dangerous and hazardous to the public and particularly to the plaintiff, to so move and to so stop said logging train over and upon said county road and public highway without any notice or warning and without taking any precautions whatever to protect or prevent the traveling public from driving into and striking against the same."
The defendant answered, admitting its ownership and its corporate character; its operation of the line of railroad; the fact that it had a sidetrack as alleged; that said railroad crossed the "Courtney Road"; that it was a public highway improved and hard surfaced and much used and frequented by automobiles, motor vehicles and the traveling public generally; denied each and every other allegation of the complaint, and by a further and separate cause of action, among other matters, alleged the following:
"That on October 15, 1927, the defendant was lawfully, carefully and prudently operating its train consisting of approximately twenty-five (25) logging cars, from Portland to Oregon City, and at or near Courtney station, in said Clackamas county, the said train was lawfully, carefully, and prudently proceeding upon the main line thereof and over and across said Courtney road; that when the said train had proceeded over and across said Courtney road for over two-thirds of its length, the rear brakeman, who was seated in the cupola of the caboose on the rear of said moving train, saw an automobile proceeding in a westerly direction upon said county road at a high and dangerous rate of speed and into and against the side of said moving train; that when said brakeman observed said automobile and appreciated that the automobile was coming at such a high rate of speed, without slackening speed, that it would be impossible to stop the said automobile without collision with the side of said train, he pulled the conductor's emergency valve which caused the emergency brakes upon said train to be applied and the train thereupon made a sudden and emergency stop on said county road; that, as said train made said emergency stop as aforesaid for the sole purpose of reducing the possible damage to said automobile and its occupants, a second automobile, of which the plaintiff was an occupant, was recklessly, carelessly, suddenly, and unexpectedly driven into and against the side of said train, and as a result of the impact of said collision the plaintiff suffered some temporary injuries to her nose and her right leg, to her damage in not to exceed the sum of seven hundred and fifty ($750) dollars.
"That the driver of said automobile, wherein the plaintiff was an occupant, at the time and place of said accident, was guilty of negligence which was the proximate cause of said accident, in that:
"(1) He failed to maintain a reasonable lookout for the said train of the defendant;
"(2) He approached said railroad crossing at a speed in excess of thirty (30) miles per hour;
"(3) He approached said railroad crossing at a speed in excess of a reasonable rate of speed under the circumstances there attendant;
"(4) He approached said railroad crossing and attempted to run over and across the same without first ascertaining as to whether or not the train of the defendant was thereon and crossing thereover;
"(5) He attempted to take the right of way from the train of said defendant;
"(6) He failed to have lights upon said automobile which then and there provided the illumination required by law;
"(7) He failed to exercise such reasonable care as would ordinarily have been expected from a reasonable prudent automobile driver under the circumstances there attendant.
"That the plaintiff and the driver and operator of said automobile were, at the time and place of said accident, engaged in the prosecution of a common purpose and joint enterprise. By reason thereof the said negligence of the driver of said automobile, of which she was an occupant, was, and is, imputed to said plaintiff.
"That the plaintiff herself was guilty of negligence which was a proximate cause of said accident and her resulting injuries, in that:
"(1) She failed to maintain a lookout for said train of the defendant which was then and there upon said railroad crossing;
"(2) She failed to maintain such a lookout in her own protection, upon approaching said railroad crossing, as would ordinarily have been expected from a reasonably prudent automobile rider under the circumstances there attendant;
"(3) She failed to warn the driver of said automobile against his excessive speed and against his reckless and careless operation of said automobile, failed to protest against said reckless and careless conduct on the part of the operator of said automobile, failed to protest against the insufficient and illegal lights of said automobile as then and there were maintained upon said automobile, and recklessly, carelessly and negligently sat supinely by in acquiescence thereof and her course of conduct did adopt and assume the said negligence of the driver of said automobile as hereinbefore alleged."
The new matter in the answer having been put in issue by an appropriate reply, the case proceeded to trial resulting in a verdict for plaintiff and judgment accordingly. The defendant moved for a new trial "on account of errors of law occurring at the trial and excepted to by the defendant and which errors are more particularly set forth in the following." Then follow more than 20 specifications of error, which we shall consider in detail so far as they seem to us to bear upon the questions presented in the motion.
AFFIRMED.
For appellant there was a brief and oral argument by Mr. Leroy Lomax.
For respondent there was a brief over the name of Messrs. Griffith, Peck Coke with an oral argument by Mr. Cassius R. Peck.
We shall first consider briefly the locus of the accident as detailed by the plaintiff in connection with the actual physical facts which can not be gainsaid. On the evening of the accident Kenneth Liebhart and Mr. Ford, both residing in the vicinity, were taking plaintiff and another young lady, Miss Sweaney, for a pleasure drive in Liebhart's Ford touring car, 1924 model, equipped, as Liebhart says, with new brakes and good lawful lights, which had been adjusted as required by law. In the course of their journey they came into the Courtney Road, which runs east and west at approximately right angles to the defendant's railroad about a quarter of a mile east of where the accident occurred. Liebhart and the plaintiff were both familiar with the road and the crossing. The night was very dark and cloudy. For a distance of 200 feet east of the crossing one can see the track for a distance of two or three blocks to the north, and for perhaps 200 feet to the south in the daytime. The highway has a slight grade downward toward the railroad crossing and a slight grade upward toward the west on the west side of the crossing. The photographs introduced in evidence, the accuracy of which is not questioned, would indicate that the grade in either direction is exceedingly slight, but not sufficient to interfere with the control of the car, and it is not claimed that it did have that effect. The driver claims that on approaching the track from the east he slowed down to 15 miles an hour, and, by reason of the extreme darkness of the night, and the fact that the road had recently been tarred black and the reach of the logging car being also black, the color, or want of color of the road and the reach of the car so blended, that he was unable to see that defendant's car was across the road and drove into it, his radiator going underneath the reach to the windshield, the collision causing the injury complained of. The road is an ordinary county road, its legal width being probably 60 feet, but having only 16 feet of pavement consisting at that time of oiled or tarred macadam. The road had considerable travel and served the needs of a considerable community residing along and near it. It would not be fair to say that the travel was congested or enormous like a city street, but rather that it was a considerably traveled county road. Mr. Boffinger, one of the plaintiff's witnesses, testified that "on Sundays and holidays, there is quite a traffic, but otherwise the traffic is not very heavy." In fact, there is no evidence to show that there are any conditions of location or traffic to differentiate this crossing from many other crossings along the route of this railroad and other roads across the state.
We have held in this state, and in conformity with a great majority of the holdings of other states, that, unless the evidence shows that the crossing is particularly dangerous, there is no legal duty on the part of the railroad company to maintain lights, gates or a watchman for the protection of travelers upon the highway.
In Russell v. O.-R. N. Co., 54 Or. 128, 136 ( 102 P. 619), we held that, where the evidence showed that the crossing was exceptionally dangerous, the question of the necessity of lights or gates, or a watchman, should be submitted to a jury, the summing up of our whole utterance on this question being as follows:
"But we do not wish to be understood as holding that the necessity for a flagman, or warning signal, is in all cases a question which ought to go to a jury. It is only necessary for us to hold, so far as this case is concerned, and in any other case where the undisputed testimony shows extraordinary dangers, that it is not error for the court to submit to the jury the question whether reasonable care for the safety of the traveling public demands that a watchman or other method of warning than the use of the bell and whistle be adopted."
The italicized words are not in the original opinion, but are so placed here to indicate the trend of the court's thought in that case. See also Hornschuch v. Southern Pacific Co., 101 Or. 280 ( 203 P. 886); Trask v. Boston M.R.R. Co., 219 Mass. 410 ( 106 N.E. 1022); Morris v. Atlantic City R. Co., 100 N.J.L. 328 ( 126 A. 295). The case last cited is similar to the case at bar in many particulars, especially in that the driver was acquainted with the crossing, knew that it had no gates or bars or lights, and also that the night was dark. In fact, every condition obtained in this case, except that in the New Jersey case the night was foggy as well as dark. See also a discussion generally of the subject of the necessity of lights, gates, et cetera, at crossings, 22 R.C.L., 1006, et seq.
Counsel for plaintiff attempts to differentiate these cases from the case at bar, on account of the construction of the logging cars in this train from the usual baggage cars, which comprise a large part of the freight trains, and contends that, because of the difference in construction of the logging cars, a different rule should be applied. The train consisted of approximately 26 cars with two motors in front. Next to the engine was, first, a merchandise car, then a box car, and after that some ordinary flat cars, and next 20 logging cars, and last a caboose. It was one of these logging cars which was across the highway and with which the automobile, in which plaintiff was riding, collided. The construction of the logging cars, as the evidence and photographs introduced disclose, is about as follows: The cars are approximately 52 feet long. They have a reach answering to a coupling pole running the entire length of the car and a bed consisting of timbers bolted together and aggregating 3 feet in width. The reach is 9 3/4 inches up and down and 3 1/2 inches transversely, and, so far as we are able to judge, is the only thing that would present itself to the view of an approaching automobile, the bed being below the top of the reach. However, there is an air chamber attached to the reach or bed and approximately in the center of the car which apparently by comparison with the reach in the photographs is about seven or eight inches wide, and would present a surface of that extent and from 12 to 14 inches long toward the highway. Underneath this bed or reach and supporting it were the forward and rear trucks which were approximately 30 feet apart, and it was this part of the car that was across the road when the accident occurred. The top of the beam or reach was 3 feet and 4 3/4 inches above the rails. The beam was of a dark color. There had been another accident on the road, less than a minute, probably about 45 seconds before this one, which occurred by another auto having run against the train while it was moving southward about 12 miles an hour, and the train at the first collision was either stopped to prevent the injury, or by the breaking of the air connection from the impact, there being a difference in the testimony on this point. However, it was so apparent that the train stopped from one of the other of these causes, that the court, there being no evidence to the contrary, instructed the jury that, so far as the stoppage of the train was concerned, it was an emergency stop; so, as far as the trial then pending is concerned, the jury was bound to say that it was an emergency stop, and, as a natural consequence, that it was not unlawful. While it may stretch credulity somewhat to accept the statement of the driver of the car that it was so dark that with good lights on the car they could not distinguish this car across the track with its face of 9 3/4 inches and the additional face of the air container, it is not necessary to say, for the purposes of this case, that the statement that they were unable to see the danger is absolutely incredible. Perhaps there was enough to go to the jury on that subject as indicating want of contributory negligence. Evidence that there were no station lights burning may have been proper for the same purpose as showing the general conditions at the time.
It was error for the court to admit evidence that a community light near the crossing had been discontinued for a year. The railroad company, in our view of the evidence, was not required to furnish a light at this crossing, and was under no obligation to keep burning a light over which it had no control, and which was not erected or maintained by it. There are some authorities which hold that, where a railway company has for a long time maintained a light or gates at a crossing and then suddenly discontinues them without notice, a liability may arise. This is on the theory that, having by such a practice led the traveling public to rely upon certain conditions at a crossing, the company should not suddenly and without warning change the conditions upon which, by long continuance, it had led the traveling public to rely.
The court erred in submitting the question of the lack of lights, gates or watchman, generally, to the jury, and no doubt the eminent and now deceased jurist, who tried this case, so concluded when he granted a new trial. It was not error for the court to submit the question of failure to blow the whistle to the jury. The law in this respect only prescribes the minimum of precaution required, and considering the darkness of the night, the character of the train, and all the surrounding circumstances, it was for the jury to say whether the whistle was actually blown at a point four or five hundred feet north of the crossing, and whether, under all the circumstances, and, especially in the absence of a bell on the train, repeated warnings by whistling might have averted the accident.
The defendant claimed that, under the circumstances, its stop across the road was brought by circumstances over which it had no control, and that, so far as it was concerned, the accident was unavoidable. There was evidence which might or might not lead a reasonable jury to that conclusion. At least, defendant was entitled to have that phase of the case go to the jury.
The defendant requested the following instruction, which was refused:
"If you find from the evidence that the accident was unavoidable so far as the defendant was concerned, you will return your verdict in favor of the defendant company."
The failure to give this instruction, or its equivalent, was error.
It is also urged that the court erred in permitting evidence by certain witnesses that shortly after the accident they made observations and found that they could not see defendant's car across the road, said observation being made at only a short distance, 25 feet or so from the track. While the evidence may not be strong or conclusive, we think the conditions are shown to be so nearly similar that it should have been admitted, and that there was no error in that respect. Otherwise, we think that the charge of the court, while technical objections may exist, was fair to both parties.
The case was a close one, barely sufficient to have been submitted to a jury, but we are of the opinion that there are phases of it that justified the court in so submitting it. The objection is made that certain of defendant's objections here to the failure of the court to give the requested instructions were not properly excepted to. The case is here under peculiar conditions. The learned judge, who sat in the trial, and who made the original order granting a new trial, died before the bill of exceptions was settled, and this was done by another judge who settled it evidently from the reporter's notes taken on the trial, which notes extended and including the whole of the reporter's account of the proceedings are attached as part of the bill of exceptions. This was the only method by which a bill of exceptions could be framed unless counsel could agree on a bill and it is evident that they did not. After the jury retired, the following colloquy occurred:
"Mr. Peck: Has the plaintiff any exceptions?
"Mr. Lomax: If the court please, the instructions were quite long in this case and there were a great number of requests on the part of the plaintiff, and a great number on the part of the defendant. I wonder if we could just have an order that each side may have a blanket exception to the refusal of the court to give the instructions that we requested?
"The court: Yes.
"Mr. Lomax: That would be fair to both parties, that would be. Now, as to the instructions given by your Honor, I don't know, it is pretty hard to follow them you see to identify them, you gave the instructions in part and of course you modified them in part, and it is pretty hard for me to just state the ones that I wanted to except to, there were some exceptions that I wanted to take to the instructions as given by the court. On my part, in case of appeal by either party I am willing that we could have the same kind of blanket exception to the instructions that were given, if that would be fair to your Honor, otherwise take a little time to settle the exceptions.
"The court: I think that would be satisfactory except some time limit perhaps ought to be made before this goes entirely out of mind. You may have any reasonable time to take your exceptions, say 10 days?
"Mr. Lomax: Yes, say 10 days.
"Mr. Peck: That is hardly fair to your Honor. I have no objection but that is hardly fair to you to put this thing off and to take exceptions at any time. If there is really anything the matter with the instructions they ought to be called to your Honor's attention now so that you can call them to the attention of the jury. If I was in the court's place I should not want to stand for that, but I am not the one that should kick about it.
"The court: The only complaint there would be that if there is some instruction that you rather think that the court ought to correct at the present time like clerical errors or things of that kind, I wouldn't like to have you take 10 days on that.
"Mr. Peck: There was a clerical error in the first instruction that the court gave where you said plaintiff where you should have said defendant.
"Mr. Lomax: An attorney should not take advantage of a thing like that.
"The court: Well, suppose then that we shorten this time, you won't require that much.
"Mr. Lomax: Oh, no.
"The court: You won't require that much time to go through the instructions and take your exceptions, this morning or this afternoon?
"Mr. Lomax: Yes.
"The court: Very well. You can take this time to go through them."
While the matter is somewhat ambiguous, we think it was clearly intended by the court that a blanket exception should be allowed to all requests refused and time granted, a short time as indicated, for counsel to except to instructions actually given and that in considering the motion for a new trial filed three days later the court so construed the understanding arrived at. Under the conditions, and in view of the discussion between the court and counsel above cited, we think it but fair to treat the refusal to give the instructions as properly excepted to.
There are many interesting phases of this case that invite and might be worthy of more extended discussion, but the pressure of other cases equally important renders it impracticable to go into details.
The order of the circuit court granting a new trial is affirmed.
BROWN and BELT, JJ., not sitting.