Doty v. Southern Pacific Co.

207 P.2d 131, 186 Or. 308, 1949 Ore. LEXIS 163

• Court: Oregon Supreme Court
• Decided: January 18, 1949
• Status: Published

Opinions

BAILEY, J.

This action arose out of a collision between an automobile driven by plaintiff, Peggy L. Doty, and a pas senger train operated "by defendant, Southern Pacific Company, where Sixth Street intersects the main line track of the railroad company in Grants Pass, Oregon, on November 28,1945. Joined with the Southern Pacific Company, as defendants, were J. O. Eifert and G. P. Burnett, engineer and conductor, respectively, of the train involved in the mishap. At the close of plaintiff’s evidence, judgment of involuntary nonsuit was entered in favor of the individual defendants. Prom a judgment in favor of the plaintiff and against the defendant railroad company, the latter has appealed.

Sixth Street in the City of Grants Pass extends in a northerly and southerly direction; it is level and is 55 feet wide. On each side of Sixth Street there is a sidewalk, approximately 12 feet wide. The street is intersected at right angles, within a distance of 120 feet, by six tracks of the defendant company. Commencing with the northernmost track and proceeding southerly they are designated in the evidence as the team track, No. 2 track, No. 1 track, the scale track, the passing track, and the main line track. The distance between the south rail of the team track and the north rail of No. 2 track is approximately 8 feet; between the south rail of No. 2 track and the north rail of No. 1 track,, approximately 40 feet; between the south rail of No. 1 track and the north rail of the scale track, approximately 20 feet; between the south rail of the scale track and the north rail of the passing track, 8.4 feet; and' between the south rail of the passing track and the north rail of the main line track, 13.7 feet. Plaintiff was proceeding southerly on Sixth Street in her automobile when she was struck by the locomotive of a passenger train which was proceeding easterly on the main line track.

Plaintiff alleges in her complaint that at the time of the accident a Southern Pacific railroad engine was parked on a side track “just east of said Sixth Street” and was emitting smoké and steam and making considerable noise, and that a strong light from the engine was shining across Sixth Street. The complaint further alleges that “at said time and place there were parked on a sidetrack of said railroad, paralleling and lying directly north of the said main line track, a number of box cars belonging to said defendant railroad company, which said box cars were parked immediately west of the place where said main line track and said Sixth Street intersected, and that said box cars and said parked railroad engine with its noise, smoke, steam and strong light greatly limited the visibility and sensory capacities on the. occasion herein referred to, which condition constituted an unusual hazard, and that the aforesaid facts were well known to defendants, and each of them.”

Plaintiff charges the defendant with the following acts of negligence: (1) Failure and neglect to provide and maintain any warning signal, by mechanical device or otherwise; (2) failure to provide a watchman; (3) failure to warn plaintiff of the approaching train, knowing that an unusually dangerous situation existed at the crossing; (4) failure to give any warning by whistle, bell, or other device; and (5) failure and negligence to reduce the speed of the train and thereby avert said collision, after seeing that a collision was imminent and having an opportunity to realize and appreciate plaintiff’s danger.

The railroad company and the individual defendants, Eifert and Burnett, filed a joint answer denying any negligence. In an affirmative answer and defense they allege that plaintiff was negligent in that (1) she failed to stop, look or listen before crossing the track when she knew, or in the exercise of reasonable care ought to have known, that trains would be passing thereon at any time; (2) she operated said automobile at a speed greater than was reasonable under the circumstances; (3) she failed to look out for and see the approaching train which was then plainly visible to her had she looked, “and particularly failed to look from a place of safety, there being ample opportunity for her so to do”; (4) she failed to have her automobile under proper control; (5) she failed to heed the timely and plainly audible signals given by bell and whistle of the approach of said train; and (6) she failed to yield the right of way to the train. The affirmative allegations of the answer were denied by the reply.

Two questions are presented for determination on this appeal. They are (1) whether there was substantial evidence of negligence on the part of defendant, and (2) whether the plaintiff was guilty of contributory negligence as a matter of law. These questions were raised in the Circuit Court by defendant’s motion for a directed verdict and by its motion for judgment notwithstanding the verdict. Of primary importance in their determination is the established rule that they must be resolved upon consideration of all the evidence, and the reasonable inferences derivable from it, in the light most favorable to plaintiff. She is entitled to the benefit not only of her own testimony but also of any evidence» favorable to her introduced by the defendant. Portland Postal Employees Credit Union v. United States National Bank, 171 Or. 40, 49, 135 P. (2d) 467, 136 P. (2d) 259.

The accident happened about 7:45 a. m. on Novem ber 28, 1945. The weather was “foggy, more or less, kind of a fog and a mist almost like a rain;” Plaintiff was en route from her home on the north side of the tracks to her place of employment on the south side. She had lived in Grants Pass for.two months prior to the collision and had crossed the . tracks in going back and forth to work for the month during which she had been employed. As she approached the railroad tracks she stopped at the regular railroad crossarm stop signal, which is about 15 feet north of the first or team track and about 130 feet north of the north rail of the main line track. She then started in low, shifted in second gear and continued at a speed of not over 8 miles an hour. As she proceeded across •the tracks she observed on her right “nothing but boxcars”. She stated that there was nothing on No. 1 track, west of Sixth Street, but that there were boxcars on both the scale track and the passing track to the west of the highway and that they were not over 24 and 20 feet, respectively, from the west curb of the street. She testified that a switch engine was on the scale track to the east of the highway and about two or three boxcar lengths therefrom, that it was facing west with its headlight shining toward Sixth Street, and that “it was puffing and working and the smoke and steam were coming up from the switch engine. * * * I could hear the engine puffing. * * I wondered just what it was going to do. It didn’t blind me, as far as that was concerned, but it did bother me.” We quote further from her testimony as follows :

“Q. What if anything did you observe on your right as you approached — I am now asking you as you approached the main line track? A. Well, just boxcars setting right up there; there wasn’t anything else to see.

“Q. When did you first observe the train on your right? A. When it was right on top of me.

‘ ‘ Q. What if anything did you do ? A. I stepped on the gas but it didn’t do any good.

“Q. Did you observe whether or not the headlights of that train were on? A. I’m not sure, because I just heard the big clang of the bell and it hit me.

“Q. What if anything did you hear as you approached the main track there? A. I didn’t hear anything.

“Q. Did you hear any whistle or other noise? A. No sir; I did not.

* # * # *

‘ ‘ Q. Mrs. Doty, as you proceeded south on Sixth Street, and as you approached the scale track, what did you do ? A. I looked.

“Q. Which way? A. Both ways.

# # # * #

“Q. And what did you do then as you passed the scale track in your automobile? A. Well, I looked that way to see what the switch engine was going to do, and I glanced the other way and there was nothing coming that I could see, and I didn’t hear anything.

“ Q. At what point on Sixth Street did you first observe the passenger engine of the train that hit you? A. Not until I was right on the main line. ”

On cross-examination she testified as follows:

“Q. * * * Isn’t it a fact, Mrs. Doty, that when you were on the track you looked up and there was the engine right close to you? A. Yes; it was right close to me.

“Q. And that would be about how far in feet, do you know? Would it be as close as I am to you now? A. It must have been close to that; close, anyhow.

“Q. * * * Was it five feet or ten feet, or was it so close you couldn’t tell? A. I was too excited to tell, to tell you the truth.

“Q. The windows were up in your car? A. The windows were not up in my car. The driver’s side of the window was down in my car.

* * # # #

“Q. Isn’t it a fact that you did not see that train until it was right on top of you? A. It was very, very close; yes; so close that I couldn’t get across ahead of it.

“Q. How far were you from the edge of the right hand edge of the sidewalk? A. Right along close to it.

“Q. How far? The width of a car, five feet or two feet, or six inches, or how far? A. Wouldn’t have been over two feet, I don’t think.”

Mrs. Doty stated that she thought her automobile had a wheel base of about ten feet and that the driver’s seat was “around four feet, five, from the front.” She further stated that there was no automatic signal, warning device, automatic wigwag or watchman at the crossing.

C. E. Parsons was driving his automobile south on Sixth Street a short distance ahead of plaintiff. In the automobile with him were his wife, Olivé Parsons, and W. R. Swacker. They barely missed being hit by the train which struck plaintiff. About the only thing which Mr. Parsons observed was the switch engine which, he stated, had its light burning and “was doing a lot of cutting up down there.” Mrs. Parsons testified that she observed box cars on their right as they proceeded south. She said that they “were very close and obstructed the view down that way is all I could say. I couldn’t say what track.” On cross-examination she testified that the only boxcars which she observed on her right were on the first two tracks (team track and No. 2 track) as they proceeded south on Sixth Street. The other passenger in the car, Mr. Swacker, testified that there “was a string of boxcars right next to the main line”; that he did not think they were over 8 or 10 feet west of the sidewalk; that he did not observe any ears on the scale track, and that the bell was ringing on the switch engine which was stationed to the east of Sixth Street.

H. L. Goodwin, who saw plaintiff’s car spinning around immediately after it was struck, stated that according to his observation the passing track to the west of Sixth Street was empty but that a switch engine, with a caboose on one end and a boxcar on the other end, was on the scale track west of Sixth Street; and that the caboose, which was on the east end of the switch engine, was “around six or eight feet from the sidewalk.” He further testified that all of the tracks north of the scale track “were blocked with boxcars, all of them”, and that “the only view you would have [to the west] would be after you passed that third track there [scale track], because it was blocked until you got practically on the second track.”

Edwin Chambers testified that he was the fireman on the switch engine, which was standing on the passing track on the west side of Sixth Street, waiting for the passenger train. He thought that his locomotive “must have been sixty feet” from the sidewalk. He did not “recall of any cars being between the engine and the sidewalk” but he was unable to state positively that there were none.

Ivan D. Simon, brakeman on the train involved in the collision, testified that about six minutes after the accident he made an investigation, and that there was an engine and a car on the passing track approximately 90 feet east of Sixth Street; that on the scale track there were four cars, the easternmost of which was about 27 feet from the west curb of the street. He said: “I stepped clear back to that stop signal, and I stepped approximately a hundred feet, and then I walked back south, and I walked along the curb, and when I come to a point where I could look to the right and have a clear vision, then I stepped from there to the main line, and it was approximately 45 feet. * * * I mean a clear vision up the main line towards Portland.”

E. P. Wood, fireman on the train here involved, gave the following testimony :

“Q. Hid you see Mrs. Doty’s car before the collision? A. Yes.

“Q. Can you come down here to the map and point out just about where you were when you saw Mrs. Doty approaching? A. When I first saw Mrs. Doty we were approaching Grants Pass, and I imagine I was sitting about eighty feet back from the highway and Mrs. Doty was approaching up the center line of traffic, going south on Sixth Street.

“Q. How far north of the main line was she at that time? A. I imagine about thirty feet when I saw her.

‘ ‘ Q. Were the brakes applied before the impact ?

“A. As soon as I seen Mrs. Doty wasn’t going to stop I hollered to the engineer to hold it, and he placed the train brakes immediately in emergency.”

The engineer to whom Wood referred was J. O. Eifert, who stated that he was on the right side of the engine, and that the “front of the engine was right about on the sidewalk when he [Wood] yelled ‘Hold her!’ ” He stated that it was about 50 feet from the window of the cab to the front of the engine. We now quote from his testimony:

“Q. Were you drifting into the station, Mr. Eifert, that morning? A. Yes.

“Q. Making as little noise as possible? A. You don’t make much noise with the drifting throttle. The whistle and the bell are all.

“Q. Other than the whistle and bell you were operating as quietly as normally possible for a train to operate? Yes.

*«« * * * *

“Q. But you didn’t get a call from the fireman until you were approximately right on the crossing, is that correct? A. Before I got on the crossing; right before I started, when the front of the engine started on the sidewalk.

“Q. That’s when you got the call to hold it? A. Yes, and I just got through releasing the air. I always slow down here and Medford, ten miles an hour, because they are both bad streets, and if nothing happens I blow the whistle right on the crossing.”

Wood testified that the bell is rung by an automatic device which is turned on by the opening of an air valve; that the “fireman is responsible for the bell; the engineer can ring it”; and that he turned the valve on “before we crossed the first crossing and it was ringing continually until the station.” He further testified that the “engineer started blowing the whistle for the Sixth Street crossing immediately after crossing Fifth Street, and he had to take his hand off the whistle cord to apply the emergency brakes when I hollered ‘Hold her’.” The engineer corroborated the fireman’s testimony as to the ringing of the bell and the blowing of the whistle. Asked how many times he blew the whistle, he-stated: “Four times, going between Fifth and Sixth Street. Two longs, a short and a long.” Chambers, to whom we have hereinbefore referred, testified that he heard both the bell and whistle as the train passed him. Burnett, the conductor on the train, who was riding in the fourth ear from the engine, testified that he heard the whistle before the emergency brakes were applied but he did not hear the bell ringing. Brakeman Simon, who was “in the head coach, four cars from the engine” testified that he heard the whistle blow prior to the application of the emergency brakes but did not remember whether he heard the bell or not.

Homer Grable, the fire chief of Grants Pass, saw the collision when he stopped his car at the intersection of Sixth and G Streets, approximately 150 to 160 feet from the place of the accident. Asked whether he had heard the bell and the whistle, he answered, “I’m not certain about the bell; I heard the whistle.” Asked how long before the impact he heard the whistle, he answered: “I think it was just before the train entered the crossing.” William L. Herron, who operates an automobile service station at the corner of Sixth and G Streets, stated that he saw the accident and was, at the time, inside of the station, and that prior to the accident he heard the bell ringing and the whistle blowing.

We shall now discuss the first question raised by defendant in its motion for a directed verdict, to wit : Whether there was sufficient evidence of negligence on the part of defendant to justify the submission of that question to the jury.

Sixth Street is 55 feet wide, with four or more traffic lanes, and is the main highway in Grants Pass, a city with a population of more than 6,000 in 1940. This railroad crossing, consisting of six tracks in a populous city, is unlike ordinary crossings in the country. The evidence is somewhat conflicting as to which tracks, west of Sixth Street, had boxcars standing thereon, and how far the boxcars were from the west curb of Sixth Street. There is, however, substantial evidence that boxcars were on all of such tracks, with the possible exception of No. 1; that these boxcars were only a few feet west of the west curb of Sixth Street; and that they prevented those traveling south in automobiles on Sixth Street from seeing a train approaching from the west on the main line track until they were beyond, and south of, the boxcars on the passing track. There was also the distraction caused by the headlight shining from the switch engine, stationed to the east of the highway, and by the noise that it was creating.

In our opinion the Circuit Court did not err in submitting to the jury the question of defendant’s negligence. There was substantial evidence sufficient to support findings that this was an unusually hazardous crossing and that the failure of the railroad company to maintain gates, flagman, or some warning signal at the crossing constituted negligence which was the proximate or one of the proximate causes of the accident. Russell v. Oregon R. & N. Co., 54 Or. 128, 102 P. 619; Fish v. Southern Pacific Co., 173 Or. 294, at 327, 143 P. (2d) 917, 145 P. (2d) 991; Case v. Northern Pacific Terminal Co., 176 Or. 643, 160 P. (2d) 313. See also annotations, 60 A. L. R. 1106 and 1113. In Chicago & N. W. Ry. Co. v. Golay, 155 F. (2d) 842, the court submitted to the jury the question whether the failure of the company to maintain gates, flagman, or flash signal at the crossing constituted negligence which was the proximate or one of the proximate causes of the accident. The submission of that question was challenged on the ground that there was no substantial evidence showing that the crossing was an unusually hazardous one which reasonably required the maintenance of any of such protective facilities.

In holding that the question whether such protective facilities should be provided was one for the jury, the court said:

“ * * * yr0 statute of Wyoming has been called to our attention which requires a railroad company to provide a crossing of this kind with any special warning, and there is no general duty at common law to maintain any particular facilities of that kind at a crossing. But the rights of the general public and the rights of the railway company at street crossings are mutual and reciprocal; and, although common convenience gives to trains precedence over automobiles in the use of crossings, it is upon the condition that the company will give due warning of the approach of its trains in order that those in automobiles may stop safely and wait for the trains to pass. What constitutes reasonable and timely warning depends upon the circumstances and surroundings. For instance, the vigilance and care must be greater at crossings in a populous city or town where the travel is great than at ordinary crossings in the country. And, as a general rule, whether reasonable care and prudence require under all the circumstances that special warning facilities be maintained at a crossing in a city or town is a question of fact for the jury. [Citing numerous cases.] ”

The evidence does not show the amount of travel over this crossing at the time the accident occurred. But, even if it were extremely light, that fact, in itself, would not remove the crossing from the category of unusually hazardous crossings. Case v. Northern Pacific Terminal Co., supra; Northern Pacific Railway Co. v. Moe, 13 F. (2d) 377.

In the determination of this feature of the case we have not overlooked Robison v. Oregon-Wash. R. & N. Co., 90 Or. 490, 176 P. 594; Hornschuch v. Southern Pacific Co., 101 Or. 280, 203 P. 886; Meaney v. Portland Electric Power Co., 131 Or. 140, 282 P. 113; Irwin v. Southern Pacific Co., 163 Or. 72, 95 P. (2d) 62, cited by the defendant in support of its contention that the crossing here involved was not unusually hazardous. The factual situation in each of those cases is materially different from that in the instant case, and what is here said is not in conflict with the holdings in those cases.

We shall now consider defendant’s second proposition of law, to wit, whether plaintiff was guilty of contributory negligence as a matter of law. In discussing this question we should not overlook the well established rule of law in this state that contributory negligence is an affirmative defense which must' be pleaded and proved by the defendant, “except perhaps in those rare instances where it conclusively appears from the testimony adduced by plaintiff”. Flatman v. Lulay Bros. Lbr. Co., 175 Or. 495, 499, 154 P. (2d) 535. In the absence of evidence on the subject the presumption is that plaintiff exercised due care in crossing defendant’s tracks. Negligence is never presumed. Proof that she was not negligent was no part of plaintiff’s case. McBride v. N. P. R. R. Co., 19 Or. 64, 23 P. 814; Fuller v. Oregon-Wash. R. & N. Co., 93 Or. 160, 181 P. 338, 991; Kirby v. Southern Pacific Co., 108 Or. 290, 216 P. 735; Simpson v. Hillman, 163 Or. 357, 97 P. (2d) 527. In McBride v. N. P. R. R. Co., snpra, the court said:

um * * Where there is no direct evidence that a traveler did not stop, look and listen, the presumption of law is that he performed his full duty, or that he was not contributorily negligent. ‘The common law presumption is/ said Clark, J., ‘that every one does his duty until the contrary is proved, and in the absence of all evidence upon the subject, the presumption is that the decedent observed the precautions which the law prescribed. ’

# # # # #

“While it is the duty of a traveler on the road when about crossing a railroad track, to observe the proper care and diligence by looking and listening, or both, as the necessity of the situation may require, for his safety, yet where the evidence is silent as to what the party injured in fact did on the occasion, it is not to be presumed that he recklessly exposed his own life, or attempted to cross the track in the face of an approaching train. * * *”

In the instant case plaintiff testified that she stopped at the regular railroad crossarm stop signal, but she was not asked whether she looked or listened when she stopped. As she proceeded to cross the track she observed on her right “nothing but boxcars”, and on her left a switch engine “puffing and working” with smoke and steam coming from it. As she approached the scale track she looked both ways and as she passed that track she looked to her left to see what the switch engine was going to do and “glanced the other way and there was nothing coming that I could see, and I didn’t hear anything.” She did not hear- “any whistle or other noise” as she approached the main line track. She first observed the train which struck her automobile when “it was right on top of me”.

Defendant asserts that plaintiff “did not listen for a train. The last time she looked to her right, or west, was when she was 27% feet distant from the main line track.” Because of such alleged failure on the part of plaintiff to look and listen, defendant argues that she was guilty of contributory negligence as a matter of law. The burden of proving that plaintiff did not listen was on the defendant; it was a part of its defense. It was not incumbent on plaintiff to prove that she did listen. Moreover, the jury might at least have inferred that she was listening, from her testimony that as she passed the scale track she glanced to her right “and there was nothing coming that I could see, and I didn’t hear anything.” There is also the presumption that she did her duty.

The assertion by defendant, that the last time plaintiff looked to her right was when she was 27% feet distant from the main line track, is difficult to understand. Apparently defendant arrived at the figure of 27% feet by computing the distance between the south rail of the scale track and the north rail of the main line track. Plaintiff, as has hereinbefore been pointed out, testified that as she approached the scale track she looked both ways and that as she passed the scale track she looked to her left, to see what the switch engine was going to do, and glanced to her right. Since plaintiff apparently looked to her left before glancing to her right, she might have been several feet south of the scale track when she looked to her right. However, it is not contended by defendant that plaintiff could have seen the approaching train until she was within approximately 15 feet of the main line track.

Defendant called as a witness William H. Kennedy, a civil engineer employed by the Southern Pacific Company. Mr. Kennedy testified as to the distance between the passing track and the scale track. He also testified that the “overhang of the standard boxcar” is close to two and one-half feet, and that, assuming the existence of a boxcar on. the passing track 24 feet from the west curb line of Sixth Street and making allowance for the overhang of a boxcar, an observer on the curb line, six feet from the north rail of the main line track, “could look right straight down there [the main line track] ’ ’; that the view would be approximately the same “until you got up to a little more than 11 feet from the north rail”; that at a point 12 feet north of the northernmost rail an observer would have a clear view of about 105 feet west on the main line track; and that at a point 15 feet north, an observer would have a view of about 90 feet. There is no evidence as to what the view would be at a greater distance than 15 feet from the north rail.

The foregoing questions were based upon the hypothesis that the boxcars on the passing track were 24 feet west of Sixth Street, whereas the plaintiff testified that they were not more than 20 feet. Mr. Swacker, whose testimony we have hereinbefore referred to, stated that they were very close to the sidewalk, and that “I didn’t have time; I wasn’t thinking about the cars, but I wouldn’t think that was over eight or ten feet, guessing.” Asked whether he would testify that they were 8 or 10 feet, he answered: “I wouldn’t want to swear to it, because I don’t know how close they was. They were close; I will say that; they were close to the sidewalk.” And on cross-examination he said: “They were awfully close, but I am not going to guess * * *

The evidence is undisputed that as she approached the railroad tracks plaintiff stopped at the regular rail road crossarm stop signal, which was approximately 130 feet north of the north rail of the main line track, and that she proceeded to cross the tracks at a speed of not over eight miles an honr. If we assume that she traveled at the rate of eight miles per hour, she would then be traveling at the rate of approximately 11.73 feet per second, and it would take her a little over eleven seconds to travel the distance from the stop signal to the main line track.

Mr. Kennedy testified that the overhang of passenger cars and locomotives is about the same as that of boxcars, i. e., approximately two and one-half feet. Defendant does not expressly state that it was the duty of plaintiff to have stopped immediately before crossing the main line track to ascertain whether there was a train approaching from her right, but we infer from its argument and the cases it cites that such is its contention unless plaintiff could have seen the train, while traveling in her' automobile, in time to have avoided the collision.

Defendant relies to a great extent on Cathcart v. Oregon-Wash. R. & N. Co., 86 Or. 250, 168 P. 308, and Robison v. Oregon-Wash. R. & N. Co., supra. In the Cathcart case the accident occurred in the city limits of The Dalles where six tracks crossed Madison Street at right angles. A work train was standing on what is known as the eastbound main line. Its engine was headed east and extended eight or ten feet into Madison Street. Plaintiff testified that he passed about 18 feet in front of the standing locomotive and saw the approaching train on the next track too late to avoid the accident. He recovered judgment in the Circuit Court, and this Court, in reversing that judgment and ordering a nonsuit in favor of defendant, said: “In the present instance there must have been clearance between the two main tracks else the trains could not have passed each other; hence, there was a place, to wit, in this clearance, from which the plaintiff safely could have viewed the track before going upon it.”

In the Robison case the accident occurred in the country. Frank Weygandt was driving and Robison was a passenger in the car. In the holding that Weygandt was, as a matter of law, guilty of contributory negligence, the court said:

“* * * As applied to Weygandt, the testimony on his behalf, in the light most favorable for his administrator, shows that while yet his car was three or four feet from the track the locomotive could be seen at a distance of from eighty to one hundred feet. Even that space would have been clearance sufficient to prevent collision. The locomotive, passing so near, would not have frightened or disturbed his machine as if it had been a spirited team he was driving. We are not deciding within how short a distance an automobile can be brought to a standstill from any given speed. We are only saying that with his car halted three or four feet out of the way of the locomotive a chauffeur safely may look at a train moving on the track before him. * * 5 y

The excerpts from the last two mentioned cases illustrate the extreme to which this Court has gone in the past to prevent recovery for injuries suffered at railroad crossings.

We shall next consider the case of Pokora v. Wabash Ry. Co., 292 U. S. 98, 78 L. Ed. 1149, 54 S. Ct. 580, 91 A. L. R. 1049. Attention is there directed to a statement in Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66, 72 L. Ed. 167, 48 S. Ct. 24, 56 A. L. R. 645, reading as follows: “In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look.” This was termed by the Court in the Pokora case as an unnecessary remark upon the facts before the Court. The Court then proceeded as follows:

“There is need at this stage to clear the ground of brushwood that may obscure the point at issue. We do not now inquire into the existence of a duty to stop, disconnected from a duty to get out and reconnoitre. The inquiry, if pursued, would lead us into the thickets of conflicting judgments. Some courts apply what is often spoken of as the Pennsylvania rule, and impose an unyielding duty to stop, as well as to look and listen, no matter how clear the crossing or the tracks on either side. [Here the court cites 2 cases from Pennsylvania, one from Alabama, and one from Maryland.] Other courts, the majority, adopt the rule that the traveler must look and listen, but that the existence of a duty to stop depends upon the circumstances, and hence generally, even if not invariably, upon the judgment of the jury. [Here are cases cited from New York, Iowa, Arkansas, Connecticut, and Illinois.] The subject has been less considered in this court, but in none of its opinions is there a suggestion that at any and every crossing the duty to stop is absolute, irrespective of the danger.”

The Court, after discussing further the Goodman case, said:

“Choice between these diversities of doctrine is unnecessary for the decision of the case at hand. Here the fact is not disputed that the plaintiff did stop before he started to cross the tracks. If we assume that by reason of the box ears, there was a duty to stop again when the obstructions had been cleared, that duty did not arise unless a stop could be made safely after the point of clearance had been reached. * * * For reasons already stated, the testimony permits the inference that the truck was in the zone of danger by the time the field of vision was enlarged. No stop would then have helped the plaintiff if he remained seated on his truck, or so the triers of the facts might find. His case was for the jury unless as a matter of law he was subject to a duty to get out of the vehicle before it crossed the switch, walk forward to the .front, and then, afoot, survey the scene. * * *”

"What the Court then said is very appropriate in considering railroad crossing accidents. We quote:

“Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. To get out of a vehicle and reconnoitre is an uncommon precaution, as everyday experience informs us. Besides being uncommon, it is very likely to be futile, and sometimes even dangerous.

The Court then points out the different dangers which might be encountered by leaving the car parked and reconnoitring. It then says:

“* * * Where was Pokora to leave his truck after getting out to reconnoitre? If he was to leave it on the switch, there was the possibility that the box cars would be shunted down upon him before he could regain his seat. The defendant did not show whether there was a locomotive at the forward end, or whether the cars were so few that a locomotive could be seen. * * *”

The opinion closes with the following:

“Illustrations such as these bear witness to the need for caution in framing standards of behavior that amount to rules of law. The need is the more urgent when there is no background of experience out of which the standards have emerged. They are then, not the natural flowerings of behavior in its customary forms, but rules artificially developed, and imposed from without. Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the common-place or normal. In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury. [Citing cases.] * * *”

In Fish v. Southern Pacific Company, supra, this Court stated that each railroad crossing case must be considered in the light of its own particular facts, “and, under the facts in this ease, there is no fixed standard of conduct, failure to comply with which would, as a matter of law, prevent the plaintiff from recovery of damages. Conceding that the jury might have found that the obstructed view of the track and other circumstances which we have discussed created a situation of unusual danger, and had the effect of requiring the plaintiff, in the exercise of due care for his own safety, to observe more than ordinary precautions, it is apparent that reasonable men might draw different inferences and arrive at different opinions from the evidence as to whether or not due care had been exercised.” It was there held that the question of plaintiff’s contributory negligence was for the jury and not for the court.

The question for determination in the instant case is whether plaintiff exercised the care which a reasonably cautious person would have used under the circumstances. Obviously, the care which a traveler upon a highway is required to exercise in approaching and crossing railroad tracks is not such care as would, under all the circumstances, prevent injury.

Many questions present themselves for consideration in determining whether Mrs. Doty was guilty of contributory negligence. Some of them are: Was the speed at which Mrs. Doty was driving too fast? If so, at what speed should she have driven her car ? Should she have stopped the car before proceeding across the main line track? If so, where should she have stopped? Was there a zone of safety where she could have stopped after the point of clearance had been reached? Should she have stopped on the passing track, on the scale track, or partly on each? Should she, before reaching the scale track, have stopped her car, got out and reconnoitred? As Mrs. Doty proceeded across the tracks, at what point could she have first seen the approaching train? Should she have seen it at that point? If she did not see it at that point, was she negligent as a matter of law? Should she have looked continuously to her right as she approached the main line track? If so, from what point should she have begun to so look? Would the presence of the switch engine to her left affect her duty to look to her right? Had she seen the approaching train, could she have stopped her car in time to avoid a collision?

Unless we can say, as a matter of law, that Mrs. Doty’s failure to have seen or heard the train in time to have avoided a collision “was negligence so obvious and certain that one conclusion and one only is permissible for rational and candid minds”, the question whether she was guilty of contributory negligence was for the judgment of the jury. Pokora v. Wabash Ry. Co., supra; Krause v. Southern Pacific Co., 135 Or. 310, 316, 295 P. 966; Fish v. Southern Pacific Co., supra.

Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 417, 36 L. Ed. 485, 12 S. Ct. 679, clearly states under what circumstances a case should he submitted to a jury. The court said:

“* * * There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms ‘ordinary care,’ ‘reasonable prudence,’ and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court. [Citing numerous cases.]” (Italics supplied.)

A railroad crossing is an inherently dangerous place, and a traveler is bound to exercise care commensurate with the known hazards, and what is required depends upon the circumstances of each case. Courts are not at liberty to state, as a matter of law, that one must conduct himself in a particular manner in each case and under all conditions.

There was insufficient space between the main line and passing tracks in which plaintiff could have safely stopped. The distance between the nearest rails was thirteen feet and seven inches. The overhang of cars on the two tracks would be approximately five feet, leaving a safety zone not exceeding eight feet and seven inches in width. We cannot say, as a matter of law, that she should have stopped on the passing track where “there was the possibility that the box cars would be shunted down upon” her. In this connection it must be remembered that defendant admitted that one of its switch engines was standing on the passing track west of Sixth Street, and there is other evidence that there was one or more boxcars between the engine and the street, and close to the sidewalk.

There is a distance of only eight feet and four inches between the passing arid the scale tracks and therefore insufficient space in which Mrs. Doty could have stopped her car. There is evidence that there was no locomotive attached to the boxcars standing on the scale track, but there is no evidence that the cars on the scale track were so few that a locomotive attached thereto could be seen by plaintiff.

Mr. Wood, the fireman, testified that he “was sitting about eighty feet back from the highway” when he saw Mrs. Doty. He imagined that she was about 30 feet north of the main line track when he saw her. As soon as he saw that she was not going to stop he told the engineer “to hold it” and the engineer immediately applied the emergency brakes. The engineer stated that the cab of the engine was approximately 50 feet from the front of the engine and that he did not get the call from the fireman until “the front of the engine started on the sidewalk.” In view of other evidence, inconsistent with Mr. Wood’s testimony, it was for the jury, not the court, to resolve this conflict.

We cannot say, as a matter of law, that plaintiff, before reaching the scale track, or at any other place, should have stopped her car, got out and reconnoitred. See Pokora v. Wabash Ry. Co., supra; Fish v. Southern Pacific Co., supra. Nor can we say, as a matter of law, that the speed at which she was driving was excessive, or that she should have heard the whistle or bell.

We are of the opinion that it was for the jury, and not for. the court, to determine whether the conduct of plaintiff “was such as would be expected of reasonable, prudent men, under a similar state of affairs”, and that the Court did not err in denying defendant’s motion for a directed verdict.

The judgment appealed from is affirmed.

Lusk, C. J., concurs in the result. Belt, J., did not participate in this decision.