Appeal from Circuit Court, Lane County. Edwin E. Allen, Judge.
John Gordon Gearin, Portland, argued the cause for appellant. With him on the brief were Davis C. Landis, and Gearin, Landis & Aebi, Portland, and Anderson, Richmond and Owens, Eugene.
James H. Clarke, Portland, argued the cause for respondent. With him on the brief were Robert E. Maloney, Jr., and McColloch, Dezendorf, Spears & Lubersky, Portland.
Holman, Justice. McAllister, Presiding Justice, and Denecke, Howell, and Bryson, Justices. Tongue, Justice, dissenting.
Plaintiff is the administrator of the estate of both Diane and Douglas Sargent, husband and wife, who were killed in a collision at a railroad crossing between an automobile, driven by Douglas, and defendant's freight train. Plaintiff filed a separate case for damages for the death of each decedent and the two cases were consolidated for trial. Plaintiff appealed from judgments of involuntary nonsuit given at the completion of plaintiff's cases in chief.
The principal issue is whether the crossing was extrahazardous. The issue is raised in different ways by several assignments of error, but whether prejudicial error was committed is determined by the manner in which this court disposes of the principal issue.
The accident occurred at night, a few miles north of Eugene, where defendant's main line intersects Meadow View Road at approximately a right angle. Plaintiff's decedents were traveling west, the train north, at the time of the accident. Both the road and the train track are straight for a considerable distance each side of the crossing. The view is completely unobstructed by trees, buildings, or anything of similar nature. The land is perfectly flat. Plaintiff's decedents, as they approached the crossing from the east, were faced first with a railroad crossing sign installed by the county and then by an unreflectorized cross buck at the track. There is no evidence of the distance of the county sign from the track, but the parties seem to assume, and the case was tried, as if
the distance was 275 feet. Pacific Highway 99-W parallels the train track at a distance of approximately three quarters of a mile to the west.
The vehicle in which plaintiff's decedents were riding struck the side of defendant's train while the train was being operated at 35 miles per hour, and it hit the coupling between two box cars which were the 22nd and 23rd units of a freight train of 102 cars pulled by two locomotives.
The atmospheric visibility was good except for spots of patchy ground fog, but there was no evidence of any such fog upon the road to the east of the track at the time of the accident. Plaintiff strenuously contends there was evidence of fog, but a careful examination of all the evidence discloses the contrary. The engineer of the train testified there was occasional patchy fog, but he said Meadow View Road was clear to the east of the track. A deputy sheriff said he ran into fog on his way to the scene of the accident as he approached the crossing from the west. However, this must have been at a time considerably later than the accident, because he said the ambulance was already there by the time he arrived. The first person to arrive at the scene of the accident was a resident who lived a quarter of a mile to the east of the crossing who heard the impact and went immediately to the scene in his automobile. He testified the visibility was clear when he approached the track from the east.
Pictures taken the same evening, after the accident, indicate the surface of the road was almost dry with only a few small damp spots. Two parallel skid marks were shown to lead to the track from the east. There is no evidence of their length, but the case was tried as if they were 175 feet long. The designated
speed for Meadow View Road was 55 miles per hour.
A former Public Utility Commission investigator, who investigated the accident for the Commission, and a civil engineer with experience in grade crossings, who examined the crossing shortly before trial, both testified, in effect, that in their opinion the crossing was extrahazardous.
Whether a crossing is extrahazardous is not determined by the opinion of a witness, expert or otherwise, but by whether the crossing at the time of the accident met the requirements of such a crossing as specified by the opinions of this court. The important factor is not whether the witnesses have an opinion that the crossing is extrahazardous but, rather, the reasons they give for such an opinion.
The Public Utility Commission investigator gave the following reasons for his conclusion:
1) the designated highway speed;
2) the observed speed of vehicular traffic on Meadow View Road;
3) the amount of train traffic over the crossing (25 trains per day);
4) the allowable speed for trains at that location (70 miles per hour for passenger; 60 ...