Wheeler v. Oregon Railroad & Navigation Co.

ON PETITION FOR REHEARING.

AILSHIE, J.

A petition for rehearing has been filed in this ease, and we are ashed to again consider the provisions of sec. 2821 of the Eev. Codes. It is contended by the petitioner that the construction we have placed on the provisions of that section is too harsh and not warranted by the language of the statute itself, and that it is also contrary to the decision of the courts construing similar statutes. We have held, and are of that opinion still, that a failure to ring a bell or blow a whistle at a crossing as required by the statute is in itself negligence. This fact alone would not entitle a plaintiff to recovér, unless he can also show that the injury was inflicted by the defendant’s locomotive or train of ears. The fact that a bell was not rung or a whistle blown would not make the company liable for an injury that it did not inflict. When, however, it is shown that the injury was inflicted by the defendant’s locomotive or train of cars at a place where it is required to blow its whistle or ring its bell, and it is shown that the company failed and neglected to comply with the law in this regard, the plaintiff has made a prima facie case that he is entitled to have submitted to the jury. If, on the other hand, the injured party has been guilty of contributory negligence, either in failing to look and listen or in recklessly and carelessly subjecting himself to the danger from which he received his injuries, that is a proper matter of defense, and the burden of proof rests with the defendant.

The Alabama statute, considered and construed in Louisville & N. R. Co. v. Christian Moerlein Brewing Co., 150 *409Ala. 390, 43 So. 723, differs from our statute in its terms and requirements. The court there holds that a failure to ring the bell or blow the whistle at a crossing is prima facie evidence of negligence, but that it is not sufficient to justify a recovery without also showing “the proximate cause of the injury.” It is not altogether clear, however, just what the court meant by saying that it was necessary for the proof to show “that the negligence mentioned proximately contributed to the cause of the injury.” In that ease it was conceded that the defendant’s locomotive killed the animals.

In Clinebell v. Chicago B. & Q. R. Co., 77 Neb. 542, 111 N. W. 577, it conclusively appeared that the defendant’s train did not injure the plaintiff in any way, but that she jumped from a buggy and sustained the injury. That case is not in point here.

Rogers v. Rio Grande Western Ry. Co., 32 Utah, 367, 125 Am. St. 876, 90 Pac. 1075, seems to sustain petitioner’s contention that the mere failure to ring the bell or blow the whistle is not sufficient evidence of negligence to entitle the plaintiff to have his case submitted to the jury. An analysis of the ease, however, will disclose that the supreme court of Utah held in that ease in substance as we have held, that the statute in no way impairs the railway company’s defense of contributory negligence. In that case it was said:

“It may be conceded that the failure to comply with the statute with regard to warning signals generally constitutes negligence per se, as was held by this court in Smith v. Mine & S. S. Co., 32 Utah, 21, 88 Pac. 683, but proof of negligence without more, however, is not enough. In addition to this the party upon whom rests the burden of proof must show by some competent evidence that the negligence proved was the proximate cause of the injury complained of, or, where there is more than one cause, that it at least was one of the causes.”

The latter sentence is somewhat obscure. Whether the court would consider actual injury or killing by the locomotive or train to come within the category of “one of the *410causes,” we are not advised. We think, however, that when the injury is established as having been inflicted by the defendant, and negligence in not blowing the whistle or ringing the bell is shown, a prima facie ease is made which would entitle the plaintiff to a recovery.

Petitioner also complains of our holding to the effect that a person confronted with • a sudden and imminent danger may be excused from looking or listening and the exercise of the usual and ordinary precautions, if to have done so would have been futile or would have endangered the party from the other impending peril. Among the authorities cited, petitioner has called our attention to Davis v. Chicago, R. I. & P. Ry. Co., 159 Fed. 10, and New York Transp. Co. v. O’Donnell, 159 Fed. 659, 86 C. C. A. 527. We do not understand these cases as materially differing from the view we have announced. The question of the negligence of the injured party in going upon the track or to the place injured is one of fact to be submitted to the jury. .In this case, Mrs. Grant, at the time of the accident, was not primarily traveling toward the defendant’s railway track. She was not apprised of any peril or danger on the track, nor was she apprised of the presence of the defendant’s locomotive and train of cars. On alighting from the conveyance she instantly found herself confronted by a sudden and imminent danger from the frightened team. Her only retreat from that danger was backward toward defendant’s railway track. To have required her to look and listen for an approaching train would have at the same moment deprived her of her right and the apparent urgent necessity of both watching the peril from the team, and retreating therefrom. In the meanwhile she was not apprised of the other danger and peril. Had she been so apprised, she might have concluded that the danger and peril from the moving train was more imminent and impending than that from the frightened team, and might have accordingly held her ground and remained off the track and saved her ward.

We see no reason for granting a rehearing in this case. The petition is denied.

Sullivan, C. J., and Stewart, J., concur.