Koch v. Southern Pacific Company

513 P.2d 770, 266 Or. 335, 1973 Ore. LEXIS 363
CourtOregon Supreme Court
DecidedSeptember 10, 1973
StatusPublished
Cited by24 cases

This text of 513 P.2d 770 (Koch v. Southern Pacific Company) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Koch v. Southern Pacific Company, 513 P.2d 770, 266 Or. 335, 1973 Ore. LEXIS 363 (Or. 1973).

Opinions

HOLMAN, J.

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 rims 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 head[339]*339light 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 extra-hazardous. Defendant argues this was not a proper subject for expert testimony. The matter came before the court each time in approximate^ 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.
[340]*340“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
“ME. HILLIAED: 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?
“ME. GrEEEN: Yes.
“THE WITNESS: Yes, I do.
“ME. HILLIAED: Don’t apologize. All I want to do is say I want to make the same objection, Your Honor, on the same grounds.
“THE COUET: Well, you are asking—
“ME. GrEEEN: I will ask what his opinion is.
“THE COUET: You object on the same grounds. It will be overruled.
“Q BY ME. GrEEEN: 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:

“ME. HILLIAED: 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.
[341]*341“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, §§ 1917, 1918, as follows:

“The sum of the history is, then, that the [342]*342original and orthodox objection to ‘mere opinion’ was that it was the gness 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 he drawn hy the jury as well as hy 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.

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Koch v. Southern Pacific Company
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Bluebook (online)
513 P.2d 770, 266 Or. 335, 1973 Ore. LEXIS 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koch-v-southern-pacific-company-or-1973.