Lindsey v. Southern Pacific Co. ( 1965 )

DENECKE, J.

In this action for wrongful death resulting from a railroad crossing collision, the trial court entered a judgment of involuntary nonsuit and plaintiff appeals.

There was evidence from which the jury could reasonably have found the following: Plaintiff’s intestate was a passenger in a car which stalled on the crossing with its front wheels overlapping one rail. At this time the train was about eight or nine blocks away. The driver began working with the gearshift lever; the decedent told the driver “to do something with this automobile”; immediately after that the decedent attempted to open the door; being unfamiliar with the latch it took her “a few seconds” to open the door. At the time of impact she had opened the door and had one foot on the ground; the train struck the front of the car, spinning it around and knocking plaintiff under the wheels of the train. The track at this point was straight; it was afternoon and visibility was excellent. The stalled car was visible to the train engineer f or eight or nine blocks. The train was accelerating on full throttle until a split second before the impact; the train was traveling at about 35 miles an hour, the speed limit; the train could have been stopped in about 300 feet; the brakes were not applied until a split second before the impact. The engineer testified that he did not “decide” that the car was not going to move and the occupants were not going to be able to get off the track until he was 50 to 100 feet from the crossing.

The grounds asserted for the nonsuit were contributory negligence on the part of plaintiff and no negligence on the part of defendants. The trial court was reluctant to grant a nonsuit but believed it was required to do so under our decisions in Emmons v. Southern Pac. Co., 97 Or 263, 191 P 333 (1920), and Marks, Exec. v. Southern Pac. Co., 211 Or 539, 316 P2d 523 (1957). The trial court appears to have based its decision upon the ground that the railroad was not negligent.

Some of the statements in those cases appear to support the trial court’s decision; however, they are made in the context of deciding the issue of last clear chance and not the issue of the railroad’s negligence. In Emmons the court held, “there was no error in denying the motion for a directed verdict.” (97 Or at 295) This necessarily is a holding that the railroad’s negligence was a question of fact. It is also a holding, as the court expressly stated, that the applicability of the last clear chance doctrine was a question of fact.

In Marks the plaintiff’s decedent drove his car upon the tracks where it stalled. The court affirmed a judgment for the railroad made notwithstanding a verdiet for plaintiff. The grounds were that plaintiff was contributorily negligent as a matter of law and that: “The evidence fails to show that the defendants had a last clear chance of avoiding Marks’ injury.” (211 Or at 549) Nothing was said about the railroad’s negligence.

Decisions that the railroad did or did not have the last clear chance are not decisions that the railroad was or was not negligent. Last clear chance is a contention made to avoid the consequences of the rule that plaintiff’s contributory negligence •will bar his recovery.^① Last clear chance becomes an issue only after a finding that the plaintiff was contributorily negligent. The usual sequence of issues is: (1) Was the defendant negligent? If not, the inquiry is terminated in defendant’s favor. If he was negligent, the next issue is: (2) Was the plaintiff negligent? If not, the inquiry is terminated in plaintiff’s favor. If he was negligent, the final issue is: (3) Did defendant have the last clear chance? A decision that the defendant did or did not have the last clear chance presupposes that the defendant was negligent.

A decision on last clear chance is not a decision on the issue of the railroad’s negligence for the further reason that in Oregon last clear chance is a doctrine of “discovered peril.” This court has repeatedly held that a defendant cannot be held to have the last clear chance unless he knows of plaintiff’s peril; it is not sufficient if only he should have known of plaintiff’s peril. Scholl v. Belcher, 63 Or 310, 324, 127 P 968, 973 (1912). On the other hand, the test of a defendant’s negligence, a railroad or otherwise, is either it “knew” or, as a reasonably prudent person, it “should have known.” A decision that a jury could not reasonably find that the railroad knew of plaintiff’s peril is quite different from a holding that a jury could not reasonably find that the railroad should have known of plaintiff’s peril.

Plaintiff in this case does not rely upon last clear chance. It is not essential that she do so as decedent was not contributorily negligent as a matter of law. The statement of the facts is sufficient authority for our conclusion that this issue is for the jury.

Under general tort principles the operators of a railroad train approaching a crossing have a duty to exercise reasonable diligence to avoid a collision. Fish v. Southern Pacific Co., 173 Or 294, 321, 143 P2d 917, 145 P2d 991 (1944). The railroad has a right of precedence at a crossing. However, “ [n] either the railroad nor motorist has an exclusive right to the use of the highway but must use it with due regard to the rights of the other.” Finn v. Spokane, P. & S. Ry. Co., 189 Or 126, 132, 214 P2d 354, 218 P2d 720 (1950).

The jury could have found that the engineer saw, or should have seen, for a distance of eight or nine blocks, the vehicle stopped on the track and further found that a reasonable and prudent train engineer would have put his train under such control that if the car remained on the track he could stop the train in order to avoid a collision. In Sheard v. Oregon Elec. Ry. Co., 131 Or 415, 426, 282 P 542 (1929), the jury was authorized to make such a finding by an instruction, approved as to substance. The instruction was:

“* * * that if you find that the defendant or its motorman in operating its train saw the plaintiff’s intestate on the track in the automobile, a sufficient distance away from the deceased, to have enabled it to have stopped its train, it was defendant’s duty to stop its train, and the failure to do so under such circumstances would constitute negligence on the part of the defendant; * *

Broad v. Pennsylvania R. R. Co., 357 Pa 478, 55 A2d 359 (1947); Pollard v. Oregon Short Line R. Co., 92 Mont 119, 11 P2d 271 (1932); and Herrera v. Southern Pacific Company, 155 Cal App2d 781, 318 P2d 784 (1957), held under similar circumstances, that the railroad’s negligence was for the jury.

The trial court erred in granting the motion for nonsuit.

Reversed and remanded.

Rossman, J., did not participate in the decision of this case.

① It is not necessary to discuss Rew v. Dorn, 160 Or 368, 85 P2d 1031 (1938); see 19 Or L Rev 178 (1940).