
    [Filed 1888.]
    ALICE B. DURBIN, Respondent, v. OREGON RAILROAD AND NAVIGATION COMPANY, Appellant.
    Railroad Companies — Injuries at Crossing — Contributory Negligence. — Plaintiff attempted to pass a railroad crossing with a team and wagon. She had just observed the passenger train pass, and was not expecting any other train at that time, although she had seen a freight train standing on the track, headed that way, in the town which she had just left. The railroad at that point cuts through a hill, so as to obstruct the view from the wagon-road. She was familiar with the crossing, having crossed there many times before, and had always used great care in looking for trains. On this occasion she did not stop to look or listen; her team came into collision with a passing engine, and one horse was killed and the wagon was overturned. Held, that plaintiff was guilty of contributory negligence.
    Appeal from the Circuit Court for Baker County.
    
      Olmstead & Anderson, Dolph, Bellinger, Mallory, and Simon, for Appellant.
    
      Hyde & Hyde, and A. J. Lawrence, for Respondent.
   Lord, C. J.

This was an action to recover damages for the alleged negligence of the defendant in running a train of cars against the horses hitched to the wagon in which the plaintiff was crossing the defendant’s track. At the trial, when the plaintiff rested her case, the defendant moved for a nonsuit, which the court overruled, and the defendant excepted. It is enough to say that a verdict was returned for the plaintiff, and that the present appeal brings up the judgment rendered thereon, and the record of the proceedings upon the trial.

■ The main contention is confined to the error assigned, —in not granting the motion for a nonsuit. This is claimed upon the ground that, from the evidence submitted by the plaintiff, it clearly appeared that it was the negligence of the plaintiff which occasioned the collision and caused her injury. The evidence of .the plaintiff shows that she and Mrs. Huntington, and a child of the latter, left 'the town of Huntington with a team and express-wagon to-visit some friends in the country, and that after they had traveled west a couple of miles or so, the west-bound passenger train came along and passed them; that as she left Huntington she saw standing on the track a freight train headed west, to which engines were attached, with steam up, but that, after the passenger train had passed, she thought nothing more of any trains coming; that in driving around the point of the hill or rnountain through which the railroad is cut, and across which the county road runs diagonally, and just as she was crossing the railroad track, and the front feet of the horses had reached the rail, she saw the engine approaching, not more than the length of a rail distant; that she tried to back the horses, but that before she could make them back, the train struck the horses, killing one and overturning the wagon. Her testimony also shows that she had traveled over the crossing many times a year for several years, was familiar 'with the place and its surroundings, knew the view was obstructed on account of the intervening hill, and regarded the crossing, under the circumstances of its situation, as so dangerous that she had always before stopped and listened, and if sbe did not hear the train, she or some companion for her went forward and looked up the track before venturing to cross it. She says, in reply to the inquiry whether “she had ever taken any pains to find out whether trains were passing,” that “I have got down when I was passing alone and tied my horses, and went and looked, and at other times, if any one was with me, I got them to hold the team, and went and looked, or got them to go and look for me,” and that she “always ■regarded it as a dangerous place.” “ The reason I did not got down and examine the track this time as I had done before was, that the passenger train bad gone by, and I was not expecting any train from Huntington, and I knew it was not time for the helper to go down until the passenger train had got to Weatherby.”

It is clear and undisputed that neither the plaintiff nor Mrs. Huntington listened, on approaching the crossing, to find out whether a train was coming, notwithstanding they knew the view of the track was obstructed, and that the crossing, by reason of the nature of the cut, and the location of the county road across it, was more than ordinarily dangerous, but drove directly on the track without thinking anything about, it, or observing the usual precautions required for-safety, because the passenger train had passed them, and the plaintiff did not think any other train was c-orping. There is- no doubt, if she had listened; she could have heard the approach of the train, and- avoided the accident. But it- is sought to discriminate this case from the general rule applied-to travelers in approaching railroad-crossings, and, to excuse the failure or neglect of the plaintiff to listen, on the ground that the evidence showed- that she knew, the time of the running of the trains, and as the passenger- train had ¡massed them, she knew no other train would.be due for some time, and consequently the fact whether her failure to listen under the circumstances was such contributory negligence as should defeat her recovery was for- the jury to decide.

The law assumes that there is danger-at railroad crossings, which, to avoid, requires the- exercise of care and prudence commensurate with the nature of -the place or risk, involved. It is laid down by-the courts and text-writers, when one approaches.a point upon the highway crossed by a railroad track, it. is his duty, whether on foot or in a wagon, to exercise a-care- for- his own safety, and especially to look, and listen before-attempting to cross it.

“The rule is well established,” said Miller, J., “that it is the bounden duty of a traveler approaching a railroad crossing, befpre he passes over- the same, to exercise a proper degree of car-e and caution, and to make- a vigilant use of his eyes and ears, for the purpose of ascertaining whether a train is approaching; and if by-proper use of his faculties he could have discovered the train and escaped injury, and fails to do so, he is chargeable with contributory negligence, and no recovery -can be had.” (Salter v. Railroad Co., 75 N. Y. 317.)

“He must assume,” says Mr. Beach, “that there is danger, and act with ordinary prudence and circumspection upon the assumption. The requirements of the law, moreover, proceed beyond the featureless generality that one must do his duty in this respect, or must exercise ordinary care under the circumstances. The law defines precisely what the term ‘ordinary care under the circumstances’ shall mean in these cases. In the progress of the lawr in this behalf, the question of care at railway crossings, as. affecting the traveler is np longer a question for the jury. The quantum of care is exactly prescribed as matter of law. In attempting to cross, the traveler must listen fpr signals, notice signs put up as warnings, and look attentively up and down the track. A multitude of decisions of all courts enforce this, reasonable rule.” (Beach on Contributory Negligence, sec. 68, and authorities cited in note, and also sec. 9.) Nor will the fact that a train is behind time relieve the traveler, of the duty of care and caution; railroad, companies have the right to run trains at all times, and those having occasion to cross their tracks are entitled to no exemption from care and vigilance because trains are irregular or extra trains are put. on.

“Assume in this case,” said Harris, J., “that it was negligence in the railroad company to be behind time, and will this in, law excuse the defendant from observing care on his part? In my opinion it will not. Such a rule would be extremely dangerous, and there would be much difficulty in, its application. It may be that those whp live in the immediate vicinity of railroads, and who frequently, cross them, may,-when they suppose a train has. just passed, be less careful, and this may grow into a habit, or they may consult time-tables, and from them reason that there can be no locomotive near, and act without regard to care; but if they do so, in my opinion they act at their peril. They will he charged with negligence in case they rush on the track without looking, or trying in a proper way to ascertain the fact whether danger is near, and they will not be permitted to recover damages for any injury they sustain.” (Dascomb v. Railroad Co., 27 Barb. 226.)

So that it seems that though a person or traveler may know the usual time of the running of different trains, from the fact that they may know that a train has passed, and that another train will not be along for some time according to their information or the time-table, it does not relieve him of the duty of observing care and prudence, or of using his faculties when he approaches and attempts to cross a railroad track. The law requires of him to make a reasonable use of his senses, and if the view of the track is obstructed, he must use his sense of hearing, and if he neglects to do so, and a collision results, he suffers by consequence of his own negligent act, and is not entitled to recover. He who fails to exercise this precaution when there are no circumstances to disturb his judgment, or impede his action at the time, is not using ordinary care.

It has been said: “The track itself is a warning of danger, and I think it must be laid down as a principle of law that persons about to cross a railroad track are bound to recognize the danger, and to make use of the sense of hearing as well as of sight, and if either cannot be rendered available, the obligation to use the other is the stronger, to ascertain, before attempting to cross it, whether the train is in dangerous proximity; and if they neglect to do this, but venture, blindly upon the track without any effort to ascertain whether a train is approaching, it must be at their own risk. Such conduct is of itself negligence, and should be so pronounced by the courts as matters of law.” (Christian, J., in Railroad Co. v. Miller, 25 Mich. 290.)

As the plaintiff could not use his eyes with effect,” said Crockett, J., “ it was incumbent on him, as a person of ordinary prudence, to make the best use of his ears, which he could not do while his team was in motion. Upon the plaintiff’s statement of the facts, we hold that he was guilty of contributory negligence in failing to stop his team to listen for an approaching train.” (Flemming v. Railroad Co., 47 Cal. 256.)

“But aside from this fact,” said Field, J., “the failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company in these particulars wTas no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others.” (Railroad Co. v. Houston, 95 U. S. 697.)

“A railroad crossing is a place of danger, and common prudence requires that a traveler on the highway as he approaches one should use the precaution of looking to see if a train is approaching. If he fails to do so, the general knowledge and experience of men at once condemn his conduct as careless.” (Allen v. Railroad Co., 105 Mass. 79.)

Again, it is said that a traveler should always approach a railway crossing under the apprehension that a train is liable to come, at any moment; and while he may presume, that those in charge of it will obey the law by giving the signals, the law will nevertheless require that hq obey the instincts of his self-preservation, and-not thrust himself into a situation which, notwithstanding the failure, of the railroad, he might have avoided- by the careful use of his senses. (Railroad Co. v. Butler, 2 N. E. Rep. 138. See also Railroad Co. v. Richter, 34 N. J. L. 180; note and case cited on page.226, 2 Am. & Eng. R. R. Cas.; Payne v. Railway Co., 13 Lea, 522; Scharfuth v. Railway Co., 62 Iowa, 624; Heize v. Railway Co., 71 Me. 636; Railroad Co. v. Beale, 73 Pa. St. 504; Railroad Co. v. Clarke Com., 73 Me. 168; Haas v. Grand R. R. Co., 47 Mich. 401; Tucker v. Duncan, 9 Fed. Rep. 867; Railroad Co. v. Adams, 33, Kan. 427; Railroad Co. v. Ritchie, 102. Pa. St. 425; 9,Am. & Eng. R. R. Cas. 261; 1 Thompson, on Negligence, 424, 426, and cases cited.)

It.thus appears to be,a duty imposed by the law upon, a person about to cross a railroad tp, use his eyes and ears, — to look out for sign-boards and signals, and, to listen, for bell and whistle, — and-, if the view, of. the road is obstructed, it does not relieve him of the .obligation to listen and ascertain, if-he can whether there.is an approaching, train. Nor will the fact that the train, is behind tijnq (Salter v. Railroad Co., 75 N. Y. 273; State v. Railroad Co., 47 Md. 76), or that it was a special train (Schofield v. Railroad Co., 114 U. S. 615), or the failure, of the railroad to give the signal of its approach at the crossing (see, casq supra), excuse the non-performance of this duty.

In many of the cases, the measure of duty gqes to the extent of requiring the traveler to. sjop, in oyder to look or listen, but he is not required to get; out of his wagon, and go forward on foot, for the purpose of looking (Stakus v. Railroad Co., 79 N. Y. 467; Davis v. Railroad Co., 47 N. Y. 400; Railroad Co., v. Wright, 80 Md. 182), unless there are some particular circumstances requiring it. (Railroad Co. v. Beale, 73 Pa. St. 509.) Now, the plaintiff was a competent person to take care of herself, was familiar with the road and its intersections with the railroad, and fully understood, from the obstructed view, the danger and 'risk incurred in attempting to cross it without listening. There is no pretense that her team was or became unmanageable or unduly excited, or that there were any circumstances embarrassing or perturbing her judgment, or that she was in the presence of any entangling influences or conditions to .'perplex or confuse her mind. She was in the full possession of all her faculties, and if she had listened, could have heard the train, yet, relying on the fact that the passenger train had passed, and that no other train was due for some time, she relaxed her vigilance, and drove on the track, and in collision with the train. “If the obstruction had been such,” said Johnson, J., “as to prevent her from seeing the track or train, then, in the exercise of ordinary care, she should have listened for the train.” (Railroad Co. v. Adams, 33 Kan. 431.) Upon this state of facts, what doubtful or qualifying circumstances does the conduct of the plaintiff present which excuses her from the plain consequences of her negligent acts? The only duty which the law imposed for her. own safety, as well as the lives of passengers on trains, she neglected and disregarded under circumstances which demanded the exercise of prudence and caution.

It is true that negligence is ordinarily a question of fact for the jury to determine, from all the circumstances of the case, and that the cases where a nonsuit is allowed are exceptional, and confined to those, as here, where the uncontradicted facts show the omission of acts which the law adjudges negligent.

In such cases, when the measure of duty is defined by law, then, says Mr. Beach, a failure to attaiu the standard is negligence in law, and a matter with which a jury can properly have nothing to do. This is the principle upon which Cogswell v. O. & C. R. R. Co., 6 Or. 417, was decided by Boise, J.” (Beach on Contributory Negligence, see. 163.)

We think, upon the undisputed facts of this case as made by the plaintiff, her own negligent act contributed to produce the injury which sh-e sustained by the collision, and that the motion for nonsuit ought to have been allowed. It follows that the judgment must be reversed, with directions that a judgment for nonsuit be entered.  