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Koch v. Southern Pacific Co.

September 10, 1973


Appeal from Circuit Court, Lane County. Roland K. Rodman, Judge.

James H. Clarke, Portland, argued the cause for appellant, cross-respondent. With him on the briefs were Wayne Hilliard, and McColloch, Dezendorf, Spears & Lubersky, Portland.

Burl L. Green, Portland, argued the cause for respondent, cross-appellant. With him on the briefs were Green, Richardson, Griswold & Murphy, John J. Haugh, and O'Connell, Goyak & Haugh, P.C., Portland, and William G. Wheatley, and Jaqua, Wheatley & Gardner, Eugene.

Holman, Justice. McAllister, Presiding Justice, and Denecke, and Bryson, Justices. Howell, Justice, concurring. Tongue, Justice, concurring in part and dissenting in part.


This is an action brought by plaintiff, through his guardian, for damages for personal injuries suffered when an automobile in which he was a passenger was struck by defendant's train at a grade crossing. Defendant Southern Pacific appealed from a judgment for plaintiff entered pursuant to a jury verdict.

The accident occurred during daylight at the intersection of Thurston Road and defendant's railroad track near the city of Springfield in Lane County. Thurston Road is a narrow, two-lane, hard-surfaced country road which runs north and south. Defendant's track runs in a southeasterly direction and is approached from the north by Thurston Road at approximately a 30-degree angle. At the point where Thurston Road and the track converge, the road turns right and crosses the track at almost a right angle. Traffic from the north on Thurston Road was controlled by a warning sign 700 feet before the crossing and by a standard railroad crossbuck and a stop sign at the crossing.

The vehicle in which plaintiff was riding approached the intersection from the north on Thurston Road at a speed of 25 to 30 miles per hour. The driver of the vehicle failed to stop at the stop sign at the intersection with defendant's track and the vehicle was hit broadside by defendant's train which was traveling in a southerly direction at about 50 miles per hour. There was evidence that the train had rung its bell, blown its whistle and that its revolving headlight

was working. There was no evidence to the contrary. Two passengers in the vehicle were killed and plaintiff suffered extremely severe and disabling personal injuries.

The only specification of negligence submitted to the jury was that the crossing was extrahazardous and, therefore, should have been protected by automatic gates and/or automatic signals to keep vehicular traffic off the track while a train was approaching. No charge of contributory negligence was submitted to the jury and no error was assigned for failure to do so.

Defendant contends that the trial court erred because it allowed three of plaintiff's expert witnesses to testify that, in their opinion, the crossing was extrahazardous. Defendant argues this was not a proper subject for expert testimony. The matter came before the court each time in approximately the following manner:

"Q I will ask you whether or not you have an opinion as to whether this crossing is so dangerous that the reasonably prudent person cannot safely use it unless measures are taken in excess of those normally used to warn the travelers of the approach or presence of a train?

"A Yes, sir, I have an opinion.

"MR. HILLIARD: I will object to the stating of the opinion.

"THE COURT: On the same ground as before?

"MR. HILLIARD: Same ground as before.

"THE COURT: All right. It will be overruled.

"Q BY MR. GREEN: Will you state your opinion, please.

"A In my opinion this is an extra hazardous crossing as it was described.

"Q In that terminology?

"A Yes, sir.

"Q I will ask you whether you have an opinion as to whether this is the type of intersection that the railroad can reasonably anticipate a motorist using due care would nevertheless be likely to collide with a train at the crossing unless some special warning was provided?

"A Yes, sir, I agree with that and my opinion --

"MR. HILLIARD: I thought --

"THE WITNESS: -- I am sorry. You didn't really ask if I had an opinion, Mr. Hilliard? Did you ask me if I had an opinion?

"MR. GREEN: Yes.

"THE WITNESS: Yes, I do.

"MR. HILLIARD: Don't apologize. All I want to do is say I want to make the same objection, Your Honor, on the same grounds.

"THE COURT: Well, you are asking --

"MR. GREEN: I will ask what his opinion is.

"THE COURT: You object on the same grounds. It will be overruled.

"Q BY MR. GREEN: What is your opinion?

"A I have an opinion that the description which you have given, which I can't repeat exactly, well describes this intersection probably better than I can do."

Each time substantially the following objection was made:

"MR. HILLIARD: I would object to the witness giving an opinion on that subject, your Honor. That is not an area of expert opinion. It's something that the witness has agreed he has no experience with the test of the Oregon Supreme Court. This is his first exposure to it.

"That is the question for your Honor or the jury to decide. It isn't a subject that someone as an expert can tell what an ordinary motorist would or would not do under a given situation. It's just impossible for an expert, unless that is an expert that knows as an expert, studies the ordinary careful motorist and knows what he would do when he is exercising ordinary care or not. I just don't see how that could ever be the subject of an expert opinion."

That the question put to the witness was substantially the same as the principal question which was to be decided by the jury does not keep it from being a proper subject of expert testimony. Ritter v. Beals, 225 Or 504, 525, 358 P2d 1080 (1961).

The factor which determines if a subject is a proper one for expert testimony is whether the answer of an expert can be of appreciable help to the jury. Sandow v. Weyerhaeuser Co., 252 Or 377, 380, 449 P2d 426 (1969). It depends upon whether the subject is such that the expertise of the witness gives him a special insight superior to that of the average juror. There is no doubt that the experts who testified in the present case had superior knowledge and training concerning railroad crossings and those circumstances which make them dangerous. Thus, it was appropriate for the experts to point out to the jury, as they did, the aspects of the crossing which increased its danger to vehicular traffic and the steps that could have been taken by the railroad to alleviate such danger.

The rationale behind the opinion rule as it applies to experts is expressed in 7 Wigmore on Evidence (3d ed 1940) 10, 11, 12, ยงยง 1917, 1918, as follows:

"The sum of the history is, then, that the

original and orthodox objection to 'mere opinion' was that it was the guess of a person who had no personal knowledge, and the 'mere opinion' of an expert was admitted as a necessary exception; that the later and changed theory is that wherever inferences and conclusions can be drawn by the jury as well as by the witness, the witness is superfluous; and that thus an expert's opinion is received because and whenever his skill is greater than the jury's, * * *." (Emphasis theirs.) 7 Wigmore on Evidence at 10.

While disapproving of almost all limitations on the expression of an opinion by a witness, Wigmore makes the following general statement concerning the rule:

"* * * We are dealing merely with a broad principle that, whenever the point is reached at which the tribunal is being told that which it is itself entirely equipped to determine without the witness' aid on this point, his testimony is superfluous and is to be dispensed with." 7 Wigmore on Evidence at 11.

The practical justification for some rule of limitation is stated by Wigmore thusly:

"* * * The delay and waste avoided might be in a single instance trifling; but its seriousness and its unbearableness can be appreciated if we suppose that there were no evidential limits whatever of the above nature. The time taken in the rehearsal of an interminable multitude of opinions, the confusion of the main issues by an additional mass of testimonial differences and impeachments, and the tendency for the jury now and then to decide simply according to the preponderance of numbers and of influential names, -- all these are possibilities, in the absence of some limit of the present nature." 7 Wigmore on Evidence at 11.

In order for an expert witness to determine whether a crossing is extrahazardous, the witness must

apply the legal standard for such railroad crossings as laid down by this court. An extrahazardous crossing has heretofore been defined as one at which unusual circumstances or conditions exist making it so dangerous that a reasonably prudent person cannot safely use it unless means are taken in excess of those normally used to warn the traveler of the approach or presence of a train. Brown v. Spokane, P. & S. Ry., 248 Or 110, 431 P2d 817 (1967).*fn1 The application of such criteria by the experts necessarily entailed an evaluation of the degree of care which a reasonably prudent person was capable of exercising, considering the existing dangerous circumstances which had been described in detail.

We believe an expert in railroad crossing safety is no more competent to evaluate the capabilities of a reasonably prudent automobile driver than are the court or members of the jury. Such an expert's training and experience give him special knowledge of those situations which tend to cause accidents. In addition, he can predict with some degree of accuracy the relative decrease in the accident rate at crossings which will be realized by the use of different kinds of safety equipment. It is also true that an evaluation of the relative danger of the various conditions surrounding a crossing cannot be made in a vacuum but must, necessarily, be considered in relation to the reactions of motorists who become victims at such crossings. However, ...

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