Doty v. Southern Pacific Co. , 186 Or. 308 ( 1949 )

I concur in the conclusion of the majority that there was substantial evidence that the defendant negligently created an extra hazardous crossing by reason of the manner in which the boxcars were parked adjacent to the highway. I dissent from the conclusion of the majority that the plaintiff was not guilty of contributory negligence as a matter of law.

The opinion in this case marks the final stage in the judicial erosion of the specific rules of law which have long been recognized as controlling the conduct of persons crossing railroad tracks. The majority opinion states that "The question for determination in the instant case is whether plaintiff exercised the care which a reasonably cautious person would have used under the circumstances." The majority quotes from GrandTrunk Ry. Co. v. Ives, 144 U.S. 408, 36 L.Ed. 485, as follows: "* * * There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent * * *". That statement was written in approving an instruction which applied the general standard of reasonable care to both the plaintiff and the defendant. When the trial court instructed the jury specifically concerning the duty of the plaintiff it said: "* * * He should use all his faculties of seeing and hearing; he should approach cautiously and carefully, should look and listen * * *", and the United States Supreme Court commented, "These instructions are so full and complete, and are in such entire accord with the rules of law applicable to cases of this character, that no fault whatever can be found with them. * * *" I agree that it is proper in railroad crossing cases to instruct as to the general duty to use care and prudence whenever a jury question is presented by the evidence, but in this kind of a case it is also the duty of the court to apply the rules which have defined and made specific the duty of due care.

In Hecker v. Oregon Railroad Company, 40 Or. 6, 66 P. 270, the court said:

"* * * He is required to exercise due and ordinary care to avoid being injured by a passing train. Formerly, the question of what was such ordinary care went to the jury. The law now, however, has gone beyond this, and requires a traveler about to cross a railway track to look and listen for an approaching train, and a failure in that respect, without reasonable excuse, is considered negligence as a matter of law * * *".

The rule set forth in the Hecker case has been the law of Oregon at least since 1888. Durbin v. Oregon Railroad Navigation Co., 17 Or. 5; McBride v. NorthernPacific Railroad Co., 19 Or. 64, 23 P. 814. See alsoGomulkiewicz v. S., P. S. Ry. Co., 131 Or. 175, 281 P. 851;Long v. Pacific Ry. Nav. Co., 74 Or. 502, 144 P. 462, 145 P. 1068. If these cases, and those which I shall later cite, are to be overruled, they should receive an official coup de grace' and not be left to languish from neglect.

I am of the opinion that the plaintiff was guilty of contributory negligence as a matter of law. In this case she merely testified that she did not hear anything as she approached the main track. There is no testimony that the plaintiff listened. To listen is "to give close attention with the purpose of hearing", (Webster's International Dictionary, Second Edition, Unabridged) and that is the measure of the duty imposed by law. The distinction is a vital one in the light of our decisions.

In the Hecker case it is held that a traveler is required to "look and listen at the time and place necessary in the exercise of ordinary care" and that this is generally a question for the jury, but surely this statement is not to be construed as meaning that a jury question is ordinarily presented if the traveler does not look or listen at all. See Blackburn v. Southern PacificCompany, 34 Or. 215, 55 P. 225. The Blackburn case teaches that the duty to listen is emphasized when the traveler is familiar with the crossing, and particularly when the view is obstructed.

"His view of an approaching train from the south was completely obstructed, and on the north substantially so. It is obvious, from the entire surroundings, that he could not safely depend upon his eyes to ascertain whether a train was approaching from either direction. It was, therefore, incumbent upon him to listen, and listen attentively * * *". Blackburn v. Southern Pacific Company, supra.

In Hecker v. Oregon Railroad Company, supra, the Blackburn case was distinguished because the plaintiff was not, in the Hecker case, compelled to rely alone upon hearing. In Conn v.Oregon Electric Ry. Co., 137 Or. 75, 300 P. 342, an exception to the rule of "Stop, Look and Listen" is recognized, but that exception applies when the existence of a track or railroad crossing is not apparent and is unknown to the traveler. The exception as recognized, was not applied where the view up or down the track is obstructed, but only where the existence of the railroad crossing is concealed. The distinction is recognized inAndersen v. Southern Pacific Company, 165 Or. 368,106 P.2d 1048. In Conn v. Oregon Electric Ry. Co., supra, the court applied the following rule:

"All the authorities support the proposition that where the evidence conclusively shows that a person injured at a railroad crossing must have seen or heard the approaching train if looking or listening, his testimony that he looked and listened and did not see or hear it is of no probative force and will be disregarded, even where such testimony is corroborated. * * * Such testimony is incredible as matter of law. In order to have this effect, however, the evidence must be conclusive."

The case has been modified to this extent only; that if the evidence shows that the plaintiff listened and did not hear, probative force may be given to the testimony. In Andersen v.Southern Pacific Company, supra, the testimony in behalf of the plaintiff showed that the driver of the car in which plaintiff was a guest stopped 26 feet from the track and the plaintiff and three other persons therein looked and listened and none of them saw or heard the approach of the train. The court found that after proceeding from the point at which the stop had been made, "the track in the direction from which the train was approaching was visible for a considerable distance, but that none of the occupants of the car either looked or listened."

The court said:

"All plaintiff's witnesses testified that they did not see the train, or hear the ringing of the bell or the sound of the whistle, but no witness testified that the headlight on the train was not burning, or that the whistle was not blown or that the bell was not rung before and at the time the train crossed Jefferson street."

Concerning this case we find the following comment in Fish v.Southern Pacific Company, 173 Or. 294, 143 P.2d 917,145 P.2d 991:

"The court held, in effect, that testimony of the occupants of the automobile, that they did not hear the ringing of the bell or the blowing of the whistle, was not evidence that the bell was not rung, or that the whistle was not blown. The holding, we think, was correct, in view of the fact that the evidence was that none of the occupants of the car either looked or listened. The fact that they failed to listen distinguishes the case from the case at bar."

In the case at bar there is no evidence that the plaintiff ever directed her attention for the purpose of hearing, and it may be added that there is no evidence that the plaintiff looked to her right after she crossed the scale track, which is at least 27 feet from the main line track, until she was on the main line track. The analogy to the Andersen case is striking. Since there is no evidence that the plaintiff listened for any approaching train, I conclude, in view of the quoted statement of this court in the Fish case, that plaintiff's testimony that she did not hear bell or whistle is no evidence that they were not sounded. This leaves only the strong and direct evidence that the bell was rung, the whistle blown, and that the engineer promptly applied the emergency brake upon notice of the plaintiff's danger. The evidence of the conduct of the engineer is in legal effect undisputed. It must be for this reason that the trial court granted a nonsuit in favor of the defendant engineer. If the defendant company is to be held liable for failure to reduce speed after notice that a collision was imminent, it must be upon the doctrine of respondeat superior, and by reason of the failure of the engineer to cause the whistle to be blown, the bell to be rung or speed to be reduced. The trial court granted an involuntary nonsuit as to the engineer and conductor, which amounted in law to a holding that there was no evidence of negligence on their part. That ruling became the law of the case from which no appeal has been taken. It follows that the defendant company cannot be held liable by reason of any alleged negligence on the part of the individual defendants and it also follows as the law of the case that there is no evidence of failure to ring the bell or blow the whistle or reduce speed. InFish v. Southern Pacific Company, supra, this court said:

"The defendant O.O. Johnson, the conductor of the train, having been exonerated by the verdict of the jury, the appellant contends that such exoneration had the effect of depriving of any legal basis the verdict which was rendered against it. In this connection, it cites Feazle v. Industrial Hospital Assn., 164 Or. 630, 103 P.2d 300; Emmons v. Southern Pacific Co., 97 Or. 263, 191 P. 333; Doremus v. Root, 23 Wn. 710, 63 P. 572, 54 L.R.A. 649; 2 Am. Jur., Agency, section 455, p. 361. The rule is that, where a master and servant are joined as defendants in an action to recover damages for a tort committed by the servant, a verdict in favor of the servant exonerates the master where the liability of the master, under the doctrine of respondeat superior, is based solely upon the wrongful act of the servant. The complaint in this case charged the defendants jointly with certain acts of alleged negligence. If the defendant Johnson had been the person who alone performed any of those acts, then a verdict in his favor would have exonerated the appellant, his employer. * * *"

To the same effect see Feazle v. Industrial HospitalAssociation, 164 Or. 630, 103 P.2d 300; Bowles v. Creason,159 Or. 129, 78 P.2d 324; Dare v. Boss et al., 111 Or. 190,224 P. 646. Two cases have been thought to be contrary to this doctrine, but are not so. The case of Hise v. City of North Bendet al., 138 Or. 150, 6 P.2d 30, is distinguished in the Feazle case, supra. Doremus v. Root, 23 Wn. 710, 63 P. 572, 54 L.R.A. 649, is cited and approved but distinguished in Emmons v.Southern Pacific Co., 97 Or. 263, 296, 191 P. 333. The case ofNickson v. Oregon-American Lumber Co., 127 Or. 326, 266 P. 254,271 P. 986, is not inconsistent with the doctrine stated in the Fish case. In that case there were two servants of the defendant company. One was held not liable, but there was evidence of negligence by the other, on the basis of which the company could be held liable under the rule of respondeat superior.

The rule cited in the Fish case does not relieve the defendant in the case at bar from all charges of negligence because there is evidence concerning the obstruction of the view at the crossing sufficient to carry the case to the jury on the issue of the defendant company's negligence without regard to the conduct of the engineer or to the doctrine of respondeat superior. The fact remains, however, that both the uncontradicted evidence and the ruling of the court leave the plaintiff in the position of one who, had she listened, would have heard both bell and whistle. It will even be recalled that plaintiff testified that she heard the bell at the moment of impact. From the majority opinion I quote the following:

"Unless we can say, as a matter of law, that Mrs. Doty's failure to have seen or heard the train in time to have avoided a collision `was negligence so obvious and certain that one conclusion and one only is permissible for rational and candid minds', the question whether she was guilty of contributory negligence was for the judgment of the jury. * * *"

I agree as to "Mrs. Doty's failure to have seen or heard the train" and that the question at issue is what "we can say, as a matter of law". What Mrs. Doty could see is a matter of minor importance in this case, for, as we have held, the duty to listen is emphasized when the view is obstructed. If Mrs. Doty was guilty of "failure to have * * * heard" the raucous sounds of bell and whistle which were certainly audible to anyone who listened, then she violated the look and listen rule which has been, until now, the law of Oregon. The question is not whether the plaintiff failed to exercise reasonable care as that term is understood by a jury, but rather whether she failed to do the specific things which under our decisions must be done in the exercise of reasonable care. In this case her failure to listen; her failure to hear what could have been heard, was conclusively established, and there was no question for the jury. I apprehend that, when the evidence in this type of case is conflicting, trial courts will be in grave doubt as to whether juries should be instructed upon the legal duty to look and listen, or whether they should merely follow the language of the majority opinion and state to the jury that "the question * * * is whether plaintiff exercised the care which a reasonably cautious person would have used under the circumstances."

Much has been said as to whether there was a place of safety between the scale track and the main line. There is no reason to assume that plaintiff could only hear the warning sounds after she got into the narrow area between the scale and main tracks. There were ample places of safety before she reached the scale track, places from which she could have heard what the other witnesses heard, had she listened. There was, however, in my opinion, a place of safety near the main track. The physical conditions at and near the crossing are portrayed by a map drawn to scale, received in evidence and constituting, as stipulated by the parties, a "reasonably accurate map" of the scene of the accident. Between track No. 2 and track No. 1 there is a distance of more than 40 feet. If we are to assume that plaintiff would not have heard the bell or whistle until after crossing the scale track, the point from which she glanced to the right, there was still a distance of at least 27 feet from the south rail of the scale track to the north rail of the main line track. The distance from the south rail of the passing track to the north rail of the main line track was 13.4 feet. Allowing 5 feet in accordance with plaintiff's testimony, as the distance from her position in the automobile to the front thereof, it would follow that when the plaintiff, seated in the driver's seat, was directly over the south rail of the passing track, there was still a distance of 8.4 feet from the front of her car to the north rail of the main line track, or a distance of 5.9 feet to the point which would be covered by the overhang of an engine on the main line track. The switch engine on the scale track was "parked and was not moving". There was no evidence of motion by any locomotive on the passing track near Sixth Street. I know of no reason for assuming that plaintiff could not have heard the approaching passenger train before crossing either the scale or the passing track, but I merely point out that there was still a point at which she could have stopped had she listened and heard at the point last mentioned. It should be added that from a position in the driver's seat directly over the south rail of the passing track, plaintiff certainly had a view to her right up the main line track for a distance of over 100 feet. The plaintiff testified as follows:

"Q What if anything was on the Passing Track?

"A Boxcars.

"Q How far was the Easterly end of the boxcars on the Passing Track — how far would you estimate them to be from the edge of Sixth Street?

"A From the street or the sidewalk?

"Q The street.

"A Not over two boxcars from it. I don't know how far that is. I don't know the length of a boxcar.

"MR. GEARIN: It is sixty feet, Mrs. Doty.

"A Then I would say I don't think it would be sixty feet, but I didn't know how long a box car is. I am confused as to feet, as to the length of boxcars.

"Q In view of that fact, how far do you think it was from the edge of the street?

"A I should say not over twenty."

At a later time plaintiff marked and initialed a point on the passing track representing the end of the boxcar nearest the street. This mark scales a distance of at least 12 feet from the west edge of the sidewalk or 24 feet from the curb line. Accepting testimony to the effect that she was driving within 2 feet of the curb line, and assuming that she was sitting in the driver's seat, it follows that as she passed over the south rail of the passing track there must have been a distance of from 28 to 30 feet between her and the east end of the boxcar. The engineer who prepared the plat which was stipulated as correct testified as follows:

"Q Mr. Kennedy, from a point on the West side of Sixth Street, the West curb line, at a point six feet to the North of the Northernmost rail of the Mainline Track, what would be your view conditions to the West along the Mainline Track, assuming the existence of a boxcar of the Passing Track 24 feet from the West curb of Sixth Street?

"A Well, an observer on the curb line, six feet from the North rail of the Mainline Track, would be — that would leave 7.7 feet to the rail of the Passing Track, and the boxcar which projects approximately 2 1/2 feet on this side Southerly from the South rail there would not obstruct the vision at all. You could look right straight down there.

"Q How would that view condition be at seven feet, Mr. Kennedy? From Northernmost rail of the Mainline Track along the West curb line?

"A Well, the view would be the same until you got up to a little more than eleven feet from the North rail."

The engineer further testified that at a point 12 feet north of the northernmost rail of the main line track one would have a view, standing on the curb line, of about 105 feet along the main line track. It is apparent that the view along the track would have been considerably greater had the engineer's observation been taken from the point at which plaintiff sat in her automobile, which was 4 or 5 feet east of the curb line. The physical measurements on the ground therefore indicate not only that the plaintiff had a safe place to stop, but also that she could have stopped her automobile after reaching a point from which she could have seen as well as have heard the approaching train.

In connection with the issue of contributory negligence, it must also be remembered that the defendant company was operating on a fixed track and had the right-of-way and the preference in passing the point of intersection. Robison v. Oregon-Wash. R. N. Co., 90 Or. 490, 176 P. 594; Olds v. Hines, 95 Or. 580,187 P. 586, 188 P. 716; Emmons v. Southern Pacific Co., supra.

The plaintiff, at least by implication, argues that she should not be held guilty of negligence as a matter of law because there was a diverting influence which may have distracted her attention from the approaching passenger train. The diverting influence in this case would be the switch engine on the scale track to the east of the street and two or three boxcar lengths therefrom.

In Russell v. Oregon R. N. Co., 54 Or. 128, 102 P. 619, the action was to recover damages for the death of a thirteen year-old boy who drove upon the railroad track without stopping, looking or listening. The court said:

"* * * He `thought as a child and understood as a child,' and in an emergency he would act as a child, and it would be a harsh rule that would hold him to the same strict accountability that would be required of a person of mature years. * * *"

The court also observed that there was:

"* * * a dam in the river at this point, the roaring of which rendered it difficult to hear and locate trains. A sawmill nearby also furnished an additional voice to the general chorus. There was testimony that at times, and under certain conditions, the echoes from the high walls of the canyon — through which the road passes — so reverberated the sounds of trains and whistles as to deceive travelers into the belief that trains coming from the west were coming from the opposite direction."

There was no such situation in the case at bar and it may reasonably be inferred from the opinion that had the injured person in the Russell case been of mature years the court would have held him guilty of contributory negligence as a matter of law.

In Christensen v. Willamette Valley Railway Co., 139 Or. 666,11 P.2d 1060, the plaintiff driver of an automobile ran into some empty logging cars which were attached on the rear end of the passenger coach. We quote from the opinion of the court:

"* * * If the defendant railway company was operating this mixed train — composed in part of five empty logging cars — with red and green lights on the rear end of the passenger coach, but without any lights on the logging cars to indicate the rear end of the train, it was engaged in a dangerous enterprise. Any person of ordinary prudence who observed the red and green lights on the rear end of the passenger coach might well conclude that such markers indicated the rear end of the train. Under the circumstances, this feature would tend to divert the attention from any impending danger of colliding with the empty logging cars and would, in fact, constitute a trap and a snare to those who used this highway crossing. In other words, we think there is substantial evidence tending to show that the negligence of defendant tended to lull the plaintiff into a false sense of security: * * *"

The court added:

"* * * Had it not been for the diverting influence involved in this case, such as the red and green lights on the motor coach, the absence of lighted markers on the logging cars, and the gleam of the lights of an automobile approaching from the opposite side of the track, the plaintiff might have been able to avoid striking the train. Who knows? * * *"

This was not merely a case of a diverting influence. It was, as the court said, a trap caused by the negligence of the defendant.

In Kirby v. Southern Pacific Co., 108 Or. 290, 216 P. 735, action was brought by the plaintiff as administrator for the decedent, an eighteen year-old boy who was killed in a collision with a Southern Pacific train running 30 miles per hour. Plaintiff was driving west on Fifth Street and the train was approaching from the south. At that time a warning bell was ringing one block north of Fifth Street, and there was a train on the side track two blocks north of the place of collision. Judgment went for the plaintiff and the defendant appealed. The court indulged the presumption that the deceased had exercised due care and had looked and listened. We quote:

"* * * The circumstances after that indicate that the ringing of the bell at the intersection of Fourth Street with the railroad, and the train near the depot attracted the attention of the decedent and diverted his observation from the railroad at the south. From the testimony in the case, the jury could reasonably conclude that the train was running at a terrific rate of speed, and that the decedent was driving only twelve or fifteen miles per hour and exercised due care."

The facts of the Kirby case resemble the one at bar only in this, that the driver's attention was directed toward a bell and engine on one side of the street, but he was hit by a train approaching from the other side. A distinction is that in the Kirby case it was presumed that the deceased looked and listened, and in the case at bar the evidence fails to show that she listened or that she looked from a point from which she could see down the track. In the case at bar we have quoted the evidence which shows that the switch engine, two or three boxcar lengths from the street, was parked, but that it was puffing, and bothered the plaintiff, and that she could hear it. If it distracted her attention prior to crossing the scale track, there was certainly no reason for believing that it constituted a distracting influence after she had crossed the track on which she knew the switch engine to be standing. From the scale track on, there was no disturbing influence.

The rule which has received the approval of this court is as follows:

"The duty to look and listen before crossing a railway track which is imposed upon travelers upon a highway continues as long as the occasion for the exercise of such duty continues and if there is any point at which by looking and listening the person injured could have avoided the accident and he failed to do so, his contributory negligence defeats a recovery."

This rule was cited with approval in Cathcart v.Oregon-Washington R. N. Co., 86 Or. 250, 168 P. 308. In the Cathcart case the facts were as follows: Madison Street in the city of The Dalles, runs in a northerly and southerly direction and is intersected at right-angles by Front Street, on which there are six railroad tracks. Plaintiff was driving northerly on Madison Street toward said intersection. The first three tracks, counting from the south, are switch and passing tracks. The fourth and fifth are main tracks. A work train headed east was standing on track 4, the front of the engine being approximately on the west line of Madison Street. This train obstructed plaintiff's view of the fifth track to the west of Madison Street. The plaintiff testified:

"* * * I got over the fourth track and started, kept on going across slowly and the switch-engine was approaching very rapidly up on the fifth track and hit me as I was going across. * * *"

Plaintiff was looking and listening. The court said:

"No case has been produced and we opine none can be which excuses the traveler from both looking and listening as he approaches a crossing; and it is well settled that, especially where he is familiar with the situation he must use greater care as the danger is greater. It is also reasonable as well as established by authority that he must look from a place where he can see and listen from a place where he can hear and that this duty is imperative so long as there is any need of its exercise; in other words, until the danger no longer exists. * * *"

Again the court said:

"* * * Warned of danger by his thorough familiarity with the surroundings, he passed the zone of safety without efficiently looking from there upon the only place from which danger would come and went forward into the accident which happened. * * *"

The substance of the decision on appeal was that though the plaintiff looked and listened, he did not look from a point from which he could see whether or not a train was approaching. He was held guilty of negligence as a matter of law.

In my opinion, the reasons for holding plaintiff in the case at bar to have been negligent as a matter of law are stronger than those which existed in the Cathcart case. The conclusion is that the plaintiff would have heard the bell and whistle of the train had she listened. There being no evidence that she listened, she is chargeable with the knowledge of what she would have discovered if she had performed her duty in that respect. The plain fact is that plaintiff followed another car across the tracks. The other barely escaped being hit. Plaintiff did not escape. When plaintiff was asked what she did when she first observed the train she said, "I stepped on the gas but it didn't do any good. * * * It was very, very close; yes; so close that I couldn't get across ahead of it." In fact, her car did get across though it was hit in transit. The case appears to be one in which plaintiff tried to beat the train, but the race ended in a tie.

We also find that there was a place of safety from which she could have looked without leaving her car and from which point she could have ascertained if the train was approaching, but there is no evidence that she looked after crossing the scale track. That she did not look is shown by the fact that she did not see what she could have seen had she looked. If the switch engine constituted a diverting influence, nevertheless that influence ceased to be operative when she crossed the scale track.

The majority opinion demonstrates that a plaintiff is not always required to stop or to stop, get out and reconnoiter. I agree that it was not necessary to get out and reconnoiter, and that there is no general rule requiring the motorist to stop. I would assume, however, that under any rule, if looking or listening would have warned the plaintiff of the approach of the train, she would have a duty to stop rather than risk suicide. It has been suggested that in the case of Fish v. Southern PacificCompany, supra, this court abandoned the specific rules of law requiring one to look and listen and substituted the broad, general rule which leaves to the jury the question as to whether or not the plaintiff acted as a reasonably prudent person under the circumstances and consequently that the decision in that case requires the conclusion reached by the majority in this case. I do not so construe the decision in the Fish case. In that case it is repeatedly stated that the plaintiff was listening all of the time as he approached the point of collision. The whistle was blown, if at all, approximately a mile away, and whether the bell was rung was a jury question. In the Fish case the court citedAndersen v. Southern Pacific Company, supra, and as I have shown, expressed the view that the holding of that case was correct in view of the evidence that none of the occupants of the car looked or listened. Again in the Fish case the court quoted from the Cathcart case and distinguished it by pointing out that:

"* * * The only manner in which the plaintiff could have obtained a clear view of the railroad track, without placing himself in a position of immediate danger, would have been to have stopped his car and gone forward on foot."

The court also cited and distinguished Slusher v. GreatSouthern R.R. Co., 107 Or. 587, 213 P. 420. It is true that the court said:

"The circumstances here seem to us to be such that reasonable men might draw different conclusions * * * as to whether or not the plaintiff was guilty of contributory negligence in proceeding to cross over the tracks, relying upon his sense of hearing. These questions cannot be determined by this court as a matter of law * * *"

But, in the Fish case, no question of failure to listen was involved. The whole question was whether, having listened, he had a further duty and opportunity to investigate by going forward on foot and looking. We find in the Fish case no disavowal of the rule that one has a duty to look for an approaching train from a place where he could see, and to listen from a place where he could hear. On the matter of listening, the court said in the Fish case:

"* * * As for his duty to listen from a place where he could hear, it is evident that, if his hearing was normal and if he was listening, he should have heard the locomotive bell tolling as he proceeded across the switch track, if the bell had been tolled."

The point of the case was that having listened all of the time, and not having heard the bell, the jury might infer that it was not rung. Here, no such inference is possible. Again, in the Fish case, the court cited Robison v. Oregon-Washington R. N. Co.,90 Or. 490, 176 P. 594, and said:

"We have no intention of detracting from expressions in the opinions in the Cathcart and Robison cases, to the effect that the mere presence of the railroad track is, in itself, a warning to the traveler who would cross it. * * *"

This is a far cry from any implication that those cases were overruled. The majority opinion quotes the following from the Fish case:

"* * * Each case, of course, must be considered in the light of its own particular facts, and, under the facts in this case, there is no fixed standard of conduct, failure to comply with which would, as a matter of law, prevent the plaintiff from recovery of damages. * * *"

This language may be explained by the fact that in the Fish case there was no place of safety from which to look and there was affirmative compliance with the duty to listen.

The majority opinion states that contributory negligence is an affirmative defense, and plausibly adds:

"* * * The burden of proving that plaintiff did not listen was on the defendant; it was a part of its defense. It was not incumbent on plaintiff to prove that she did listen. * * *"

The plaintiff did not hear any noise of the train, but if we are to follow our own decisions cited supra, her testimony to that effect is of no probative force and will be disregarded unless she listened and then did not hear. Conn v. OregonElectric Ry. Co., supra. If her testimony that she did not hear is disregarded, then the conclusive evidence that the bell was rung and the whistle blown satisfies the burden of proof and establishes that she should have heard what must have been plainly audible.

It is a familiar device employed by counsel in cases of this kind to argue that this court usurps the function of the jury when it holds that a plaintiff who has recovered a verdict below is guilty of contributory negligence as a matter of law. Such argument is wholly unjustified in any case of this type. We do not weigh the evidence. We accept it in the light most favorable to the plaintiff even though her own witnesses contradicted her evidence in material respects. The question before us is one of law based on special rules relative to the duty of travelers in motor vehicles at railway intersections. These rules have been long established for the protection, not only of automobile travelers, but also for the safety of members of the general public who travel upon railroad trains. To treat this case as if the only interests involved are those of the plaintiff and the defendant corporation, seems to me to ignore the realities of the situation. The rules governing conduct at railroad crossings have evolved from the judicial consciousness that the safety of hundreds of persons innocently traveling on trains depends upon the maintenance and enforcement of special rules of law for the prevention of collisions. Any relaxation of the rules as here set forth would result in increasing the peril to travelers by both means of locomotion.

In conclusion, I venture to say that the jury system is suffering damage at the hands of its friends. At common law, and under the federal practice, a jury trial is one in which the jury is instructed as to the law and advised as to the facts by the judge who may comment upon the evidence. In Oregon, the legislature has prohibited the court from advising the jury as to the facts. At common law, and in Oregon, the trial court had power and a duty to set aside a verdict which was plainly excessive. The Oregon courts have been deprived of that power, and doubts are even expressed whether a new trial can be granted when the size of the verdict indicates passion or prejudice. In the case at bar this court now, by implication, overrules specific rules of law of long standing concerning the duty of travelers in crossing railroad tracks and leaves to a jury to say in broad, general terms whether the plaintiff exercised reasonable care, applying their own definition and not that of the law. The jury system is a priceless protection against arbitrary action by the judiciary. Juries are competent to determine facts, but are mere amateurs at applying the law to the facts. I deplore the modern tendency to solve all difficult questions by saying that they are for the jury to decide.