[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 386 Plaintiff seeks to recover damages for injuries sustained by reason of having been struck by a south-bound electric train running between Portland and Oswego, operated by the defendant company. This cause was here on a former appeal (110 Or. 9,222 P. 736) and the judgment was reversed for the reason that plaintiff was held guilty of contributory negligence, as a matter of law. On retrial, a verdict was again rendered for plaintiff. Hence this appeal.
The accident occurred October 18, 1921, at about 5:40 A.M., in the outskirts of the City of Portland, as plaintiff was crossing the railway track on his way to work. It was dark and foggy. The track at the place in question runs near to and parallel with the Willamette River. Between the track and the river is plaintiff's houseboat where he and his wife had lived for eight years prior to the accident. The right of way was fenced on both sides and, in crossing the track, it was necessary to open the east gate which *Page 387 was about fourteen feet from the east rail. The houseboat was 165 feet from the track. At time of injury, plaintiff was employed by the Portland Railway, Light Power Company, as conductor, and, in going to and from his work he crossed this track daily at approximately the same time. He was thoroughly familiar with the premises and knew the schedules upon which the trains were operated. Plaintiff was at this time fifty-seven years of age, in good health and in full possession of his faculties.
We again inquire: Was plaintiff guilty of contributory negligence as a matter of law? On the first trial he thus gave his version of how the accident happened:
"I * * went to the gate, opened it, listened and looked in both directions, heard nothing and went through and closed it. After going part way I looked again to the north and to the south and seen nothing. As I was to step on the track I looked to the north and I saw an object glance before me, it looked like a shadow, but being such a dense fog and at the rate of speed it was traveling I could not judge the distance of how far it could be away from me. I realized it must be a car and hastened to cross the track and as I was leaving the track on the opposite side I was struck by the far side of the car, in the hip. * *
"Q. Now, the distance that the car ran after it hit you, and your observation as a street car man, how fast would you say this car was running? A. Thirty miles, or better. * *
"Q. Well, you don't want to tell the jury you would step on the track, after seeing it, unless you did have some idea how far it was, do you? A. I should judge better than forty or fifty feet. * *
"Q. You knew it would take you a couple of steps to get over that track, didn't you? A. Yes; and I hastened my feet to get across. *Page 388
"Q. Did it occur to you to step back and stop at that time? A. I didn't have time to step back. It was my object to get across. * *
"Q. You thought you could get across? A. Yes, sir.
"Q. That is why you didn't step back? A. Yes.
"Q. You thought you could get across, that was your judgment? A. Yes."
Thus it will be seen that plaintiff thought he could beat the train across the track, but lost in the race. Under such circumstances, this court on former hearing properly held, without dissent, that plaintiff's negligence precluded recovery. After the case was reversed and came on for hearing on second trial, we find that plaintiff thus described the accident:
"I * * come * * up to the gate, opened it, listened and looked both ways, saw no train or heard no sound of any train, passed through and closed the gate, went about half way to the track and listened again and saw nothing, and I started on to cross with my right foot about past the rail, stepping over with the left foot, which would bring me nearly in the middle of the track, turned me in that position (illustrating); I glanced and saw a faint shadow of a light, with a shadow coming through it, and I judged from that it was a car; and momentarily, I was dazed; but I hastened across the track as fast as I could to get across and was struck in the hip by the corner of the car as I left the track."
The plaintiff also testified that when he first saw this "faint shadow of a light" the car was forty or fifty feet away and was coming at a speed of "about thirty miles or better."
Does this change in the testimony render inapplicable the law as declared by this court in its former opinion? What difference does it make, so far as the application of the law is concerned, whether the plaintiff *Page 389 first saw the headlight of the train as he was stepping across the east rail of the track or when he was in the middle of the track? If he was negligent, as a matter of law, in the one instance, he would seem to have been in the other.
In determining whether the cause should have been submitted to a jury, the evidence must be viewed in the light most favorable to plaintiff. It is entitled to every reasonable intendment. If the facts present a case where fair-minded persons might differ in their conclusions as to whether plaintiff failed to exercise due care to avoid injury, then we cannot say, as a matter of law, that he was guilty of contributory negligence. His conduct must be measured by the degree of care which an ordinarily prudent person would have exercised under the same circumstances. If reasonable persons would reach the same conclusion, that plaintiff failed to look or listen for the approaching train, or, having either seen or heard it, resolved to take the risk of beating it across the track, then it would be the duty of the court to declare that he had failed to exercise due care. While it is not the province of this court to substitute its judgment for that of the jury upon questions of fact, it is properly concerned where there is no reasonable basis for a conclusion reached by a jury. It was not the purpose or intent of Article VII, Section 3c, of the Constitution of Oregon, which precludes a court from re-examining a question of fact tried by a jury, to deprive it of its judicial function to reject evidence which is utterly unreasonable and contrary to all human experience.
We are assuming, in view of the testimony of plaintiff, that no gong or whistle was sounded and that the train was being operated at an excessive *Page 390 rate of speed. We also accept his contention that there was a dense fog which tended to obscure his vision. It appears, without contradiction, in the evidence that the electric car carried a standard headlight which was burning at the time of the accident. Plaintiff says that when he was about seven feet from the track he looked and listened for a train, but neither saw nor heard one. Is this testimony not utterly preposterous and unreasonable? Would any reasonable person believe that a man in full possession of his faculties could look and listen under such circumstances and not be aware of an approaching train? The physical facts absolutely and conclusively refute the bare statement of plaintiff that he neither saw nor heard the train, assuming that he looked and listened. It is a case of the law of nature taking precedence over the testimony of a witness. As stated in White v. Minneapolis etc. Ry. Co., 147 Wis. 141 (133 N.W. 148), cited with approval in Cathcart v. Oregon-Washington R. N. Co.,86 Or. 250 (168 P. 308):
"This absolute duty of a person to look and listen before attempting to cross a railway track, extends to a vigilant attention in all directions from which a train, locomotive, or car may come, and includes obligation to see and hear such, if there be any, which such attention, in view of the danger, will enable him to. Therefore, for a person to declare he performed such duty and yet failed to perceive an approaching train or car, in case of there being such in plain sight and hearing, does not raise a question of fact for decision by a jury. Such person must be presumed to either not have performed such duty or to have done so and yet heedlessly submitted himself to the danger, and that is particularly so as regards a person traveling on foot, `since the danger zone in such case is so narrow and it may be avoided with so little effort.'" *Page 391
It may well be argued, in view of the weather conditions prevailing, that the train was not in "plain" sight, but it is impossible to conceive that such a large object could not have been seen by the plaintiff who says that he looked when seven feet from the track. If the fog was dense, there was all the more reason for the exercise of a higher degree of care. It is fundamental that the degree of care should be commensurate with the danger involved. He knew that the train was due at about the time that it arrived. His wife testified that she saw the headlight at a distance of 180 feet. Yet plaintiff could not see it forty or fifty feet away. As stated in Olds v. Hines, in disposing of petition for rehearing, 95 Or. 591 (188 P. 716):
"It is utterly unreasonable and contrary to the very facts upon which he relies for recovery, to say that the train was not in sight. Such oral declarations, when compared with the actual, admitted physical happenings present in the case, are nullities and are to be treated as if they had not been uttered."
In some jurisdictions, where visibility was affected by weather conditions, contributory negligence of the plaintiff is generally held to be a matter for the determination of the jury. However, we are not prepared to renounce the law as declared in Slusher v. Great Southern R.R. Co., 107 Or. 587 (213 P. 420), Olds v. Hines, supra, and in Cathcart v. Oregon-Washington R. N. Co., supra. Reliance is had by respondent on Kirby v.Southern Pacific Co., 108 Or. 290 (216 P. 735), but an examination of that case will disclose a peculiar and unusual state of facts whereby, through the negligence of the defendant, plaintiff's attention was diverted from the impending danger. The doctrine of diverting influence was there involved. It is not so here. While the authorities *Page 392 are conflicting, our conclusion is in keeping with the very recent case of Baltimore Ohio R. Co. v. Goodman,72 L.Ed. 22 (48 Sup. Ct. Rep. 24), wherein the United States Supreme Court declared:
"When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train not the train stop for him."
As stated by Mr. Justice McBRIDE in Slusher v. GreatSouthern R.R. Co. supra, "There is scant reason for a prudent man being run over at a crossing * * where a little patience or slight attention * * would have prevented the accident."
Much space in the briefs is devoted to the question as to whether plaintiff was a bare licensee or a licensee by invitation, but, in view of the conclusion reached that plaintiff is precluded from recovery by his own negligence, it is deemed unnecessary to consider this phase of the case.
It follows that the judgment is reversed and that the action is dismissed.
REVERSED AND CASE DISMISSED. REHEARING DENIED.
RAND, C.J., and BROWN, J., concur.