Slusher v. Great Southern Railroad

McBRIDE, C. J. We are unable to differentiate this case in any material particular from the case of Cathcart v. Oregon-Washington R. & N. Co., 86 Or. 251 (168 Pac. 308). The evidence here shows that plaintiff was familiar with conditions and Mr. Evans, who was driving with him, states that he, himself, had gone upon this way a hundred times. Plaintiff knew that the defendant had left a car upon the main track and across the county road and had, therefore, every reason to believe and did believe that its errand to the east was for a temporary purpose and that the locomotive would be either upon the main track or the side-track in a short space of time. In fact, he states, he supposed that they were spotting cars somewhere to the east. Therefore, he was not unaware of the fact [592] that the tracks were in immediate nse. There are cases wherein a party is not required to look, where his other senses will serve his purpose to the extent that a prudent man would trust them, but here plaintiff was traveling in an automobile upon low geai and proceeding slowly, but not so slowly but that some noise would result from the movements of his machine. There was a wind blowing at the time, which, according to the testimony of his own witnesses, prevented their hearing a remark which he made to them and it is very evident, both from the conditions and what actually occurred, that his sense of hearing could not be trusted. Under these circumstances he chose to go blindly upon the track where he could see to the east for a distance of only four feet on the south side of it and to take his chances of a collision. It is needless to discuss here the question as to whether defendant should have had a flagman at this point or whether plaintiff was a licensee or an invitee of the defendant. Conceding that defendant might have been negligent in this respect, it is plain that the negligence of the plaintiff, amounting under the circumstances to sheer recklessness, contributed to his injury, and this appearing from his own testimony and that of his witnesses, the finding of the lower court was correct. We are not unaware of the rule so ably and ingeniously argued by appellant’s counsel that in a motion for a nonsuit every intendment should be made in favor of the sufficiency of the testimony, but, applying that rule in its utmost strictness, we cannot conscientiously hold that plaintiff was not negligent or that his negligence did not contribute to his injury. We cannot again too strongly emphasize the state [593] ment made in Cathcart v. O.-W. R. & N. Co., supra, that persons crossing a railroad track, where it is impossible to see approaching cars in time to guard against injury, must take the utmost care in their own behalf or at least reasonable care. No flagman or signalman under such circumstances can add to the warning which the track itself announces, for it is saying “Beware!” every instant. There is scant reason for a prudent man being run over at a crossing, and especially in a case like this where a little patience or slight attention to conditions such as getting out of a car and looking around the corner of a building would have prevented the accident. An automobile is an agency that can be stopped with slight inconvenience or turned in its direction without much loss of time, while it requires time to stop a train and it is impossible for it to turn aside. The judgment is affirmed. Affirmed. Rehearing Denied. Burnett, Harris and Rand, JJ., concur.