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Mills v. Dunn Bros. Inc.

December 7, 1972

MILLS, APPELLANT,
v.
DUNN BROS., INC., RESPONDENT



Appeal from Circuit Court, Clackamas County. Winston L. Bradshaw, Judge.

George M. Joseph, Portland, argued the cause for appellant. With him on the brief were Carlton R. Reiter; Reiter, Day, Wall & Bricker; and Bemis, Breathouwer & Joseph, Portland.

Ridgway K. Foley, Jr., Portland, argued the cause for respondent. With him on the brief were Gordon Moore; and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Holman, Justice. O'Connell, Chief Justice, and McAllister, Denecke, Howell, and Bryson, Justices.

Holman

This action presents an unusual situation. A fireman of a railroad locomotive seeks damages from the owner of a truck for personal injuries received in an intersection collision between the locomotive and

the truck. Plaintiff appeals from a judgment entered on a jury verdict for defendant.

Plaintiff contends the trial court should have instructed the jury that defendant's driver was negligent and that such negligence was a cause of the accident. No claim of contributory negligence is made by defendant against plaintiff. As a result of plaintiff's contention, it is necessary to recapitulate the evidence, remembering that, because of defendant's verdict, the evidence must be interpreted in a manner most favorable to defendant.

Defendant's driver was operating a large truck loaded with natural gas transmission pipe. The loaded truck was approximately 70 feet in length. At the time of the accident, it had just left the El Paso Pipe Yard, which is situated on Mather Road in Clackamas County, a short distance east of where Mather Road crosses the Southern Pacific Railroad tracks. Mather Road runs approximately east and west and crosses the tracks at a right angle. There are four tracks. From the east, the direction from which defendant's truck was coming, there are a spur track, a drill track, a siding or passing track, and the main line. On the east side of the tracks there is a cross buck with a stop sign on it. The cross buck and stop sign are 54 feet from the east rail of the main line, the other three tracks lying between those two points.

At the time of the accident, the spur and drill tracks were unoccupied, but the passing track was occupied south of the intersection with Mather Road by a southbound freight train called the Canby Local, which was awaiting the arrival of a northbound freight train from Eugene on the main line. The rear of the caboose of the Canby Local was 226 feet south of the

intersection. From the stop sign on the east side of the tracks, the view of the main line to the south past a point approximately 300 feet from the intersection was blocked out by the Canby Local.

Defendant's driver, traveling west, stopped at the stop sign before crossing the tracks. He looked to the south, saw no approaching train, and started to cross the tracks in the next-to-the-lowest of the truck's ten forward gears at a speed of from three to five miles per hour while he continued looking to the south. About the time the front of his truck was at the main line, he saw the Eugene freight approaching, and he pushed down on the throttle in an attempt to clear the tracks. The truck's maximum speed in its next-to-the-lowest gear was five miles per hour. The train was traveling at what defendant's driver said was a "terrible speed." The operator of the train said it was going 55 miles per hour. The speed limit for the train at that point was 65 miles per hour. The train did not blow its whistle until about the time it passed the caboose of the Canby Local. The engineer testified he could not see defendant's truck until his view cleared the caboose of the Canby Local and, at that time, the front of the truck was at the second track west of the stop sign. A deputy sheriff who investigated the accident testified a driver could not see down the main line past the caboose of the Canby Local until he was on the same line on which the Canby Local stood, which is the track next ...


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