Strubhar v. Southern Pacific Co.

SLOAN, J.

This was an action for the alleged wrongful death of plaintiff’s decedent. The death resulted from a collision between a truck operated by the deceased and one of defendant’s mail-passenger trains. The trial court allowed defendant’s motion for an involuntary nonsuit and plaintiff appeals. It is necessary to decide if the deceased was guilty of contributory negligence as a matter of law.

The grade crossing where the accident happened is on the Corvallis-Lebanon Highway (State Highway 34). It is about 150 yards east of the intersection of that highway and H. S. Highway 99E. At the grade crossing the highway and the railroad cross at right angles; the highway extends east and west; the railroad north and south. Each is straight and level for any distance from the crossing that is material to this case. The deceased, Herbert Strubhar, had approaclied the crossing from the west; the train approached from the south. The accident demolished the truck and Strubhar was killed instantly. The accident happened in the late afternoon of August 1,1961. Visibility was not impaired by weather or darkness. Before Strubhar reached the crossing he had approached the intersection of the Corvallis-Lebanon Highway and Highway 99E. He stopped before crossing that intersection and drove from that point to the crossing at a slow speed. Prom the intersection he followed a few feet behind another ear. The car ahead successfully crossed the tracks. The occupants of that car were ■witnesses. Also, Stru'bhar’s truck was followed by another truck, the driver of which was an eye-witness to the accident. There were two cars simultaneously approaching the crossing from the east. The occupants of these cars were also 'witnesses. The foregoing is a general statement of the situation prevailing at the time of the accident.

The crucial facts in respect to the alleged contributory negligence are these: The railroad crossing was protected by warning signals. The signals were of the type commonly used at rural grade crossings. At the approach of a train the signals flashed a red light and sounded a bell. The signals were situate both to the left and right of a driver approaching the crossing. On the day of the accident a crew of workmen had been replacing rails at this crossing and the signals had been disconnected. Although there is some dispute in the evidence, we must accept as a fact that the signals were not working at the time of the accident. Strubhar had driven over this crossing hundreds of times. Some of the witnesses were daily or frequent users of the same route.

There was testimony, we must accept as true, that the train was traveling at a speed of 85 to 100 miles per hour, much in excess of its normal speed.

Immediately before the collision as Strubhar’s truck was approaching the crossing, one of the work crew, sensing the danger, waved his arms and shouted in an apparent attempt to warn Strubhar. This man would have been to Strubhar’s left and on the east side of the tracks. This action by the workman was described by the driver of the truck immediately following Strubhar:

“A As he approached the tracks down in this area, I noticed a man alongside the tracks over here coming toward him and waving his arm and talking. He was saying something and looked like he was kind of desperate about something. The first thing I thought of was there must be some kind of danger, from his actions. I was still back in this area someplace, I think, when I noticed this.

“The first thing I thought of, I think, was a train, and I looked at the lights and didn’t see any lights flashing, so I assumed there wasn’t a train. Unconsciously, I looked up the track, and then I did see a train up in this area someplace. I don’t remember if I saw the front, or the middle, or what it was. So then, I looked back again and checked the lights because I thought surely the lights are working if there is a train coming. The lights weren’t working. Then I checked the truck again trying to determine if he was going to make it across the tracks or not, and in those few seconds, it was over.

“Q Did it look to you like the truck was going to make it across the track?

“A I thought he was going to.

“Q What portion of the truck was hit by the train?

“A The way it looked to me, it was the very rear of the truck.

“Q Did you hear any whistles ?

“A No.”

The facts just stated were those most favorable to plaintiff. The evidence which would have supported a finding of contributory negligence was: When Strubhar drove his truck from the highway intersection towards the grade crossing, his view of the railroad tracks to the south was impaired until he reached a point approximately 220 feet from the crossing. From that point, 220 feet away, until he reached the crossing he could have seen a train approaching from the south for a distance of about one-half mile. At speeds of from 85 to 100 miles per hour, as plaintiff’s witnesses testified, the train could have been visible to Strubhar for 18 to 20 seconds before the collision. One of defendant’s workmen testified that he had seen Strubhar immediately before the accident and that the deceased was looking straight ahead.

The arguments of the parties focus on the failure of the warning signals. The trial court apparently concurred with defendant that the non-operating signals had little if any significance; that the appreciable period of time in which the train was in view, if Strubhar had looked, was proof positive that he did not look to the south. Certainly, it cannot be held that Strubhar was entitled to rely upon the signals without any other exercise of care on his part. But neither can the failure of the signals be ignored.

An inference is a deduction from a proven fact a* * * as is warranted by a consideration of the usual propensities or passions of men,” * * *. ORS 41.330. One of the usual propensities of men is that they do not normally throw themselves in front of speeding trains and, to the contrary, will exercise ordinary care in their own concerns. ORS 41.360 (4). When Strnbhar’s conduct was tested in this situation, plaintiff was entitled to the benefit of the presumption of ordinary care upon the part of decedent. McBride v. N. P. R. R Co., 1890, 19 Or 64, 23 P 814; Doty v. Southern Pacific Co., 1949, 186 Or 308, 323, 207 P2d 131, 137.

Lindekugel v. Spokane, P. & S. Ry. Co., 1935, 149 Or 634, 42 P2d 907, 99 ALR 721, has received particular attention in this case. Plaintiff emphasizes this language of that decision:

“We refer to [Kirby v. Southern Pacific Co., 108 Or. 290 (216 P. 735)] as an illustration of the attitude of this court in support of the principle that the operation, and, hence, of course, the non-operation, of a safety signal at a railroad crossing is a circumstance which should be given substantial effect in determining whether the conduct of a traveler at such crossing should be submitted to a jury or judged exclusively by the court upon the question of his alleged contributory negligence.” 149 Or 644.

Defendant relies on the fact that in addition to a non-operating signal in Lindekugel there was darkness and fog (the latter was minimal, 149 Or 643) and to this language of the opinion:

* * * “We think that whether plaintiff placed too much reliance on the wigwag gong is a question for the jury. In this connection, it is to be remarked that plaintiff herself did not state how much reliance she gave it. If she had stated that she relied upon it to a greater extent than upon her vigilance in looking and listening for trains, it could have been argued with much plausibility that as a matter of law she was guilty of negligence in so doing.” 149 Or 645.

The decisive language of Lindekugel is that just quoted. “We think that whether plaintiff placed too much reliance on the wigwag gong is a question for the jury.” To this could 'be added that all of the circumstances must be weighed. In the instant case in addition to the importance the jury may attach to the failure of the signal we have the distraction caused by the gesticulating workman. (Kirby v. Southern Pacific Co., et al, 1923, 108 Or 290, 216 P 735.) The testimony quoted and the evidence given by other witnesses could be taken to show that this distraction, by an employee of defendant, could have claimed plaintiff’s attentions to the opposite side of the crossing from the approaching train for several crucial seconds before the collision. There were also the traffic conditions, the excessive speed of the train, the testimony of the witnesses who swore they heard no bell or whistle from the train and the prior acquaintance of plaintiff with the crossing. See Baltimore & O. R. R. v. Corbin, (DCCA 1940) 118 F2d 9, 11, where it was said:

* * * “The rule is peculiarly applicable, though not exclusively so (citation), where the traveler, as here, is familiar with the crossing and has come to rely on the signals to warn of approaching trains. We therefore think the jury was entitled to consider the fact of reliance on the signals together with the other evidence largely circumstantial, in determining whether the decedent was contributorily negligent.”

The cause should have been submitted. Reversed.