Decided March 17, 1908.
On Motion for Rehearing.
[94 Pac. 504.]
Mr. Justice Mooredelivered the opinion of the court.
8. In a petition for a rehearing it is insisted by defendant’s counsel that in the former opinion herein, a correct application of the law was not made to the facts involved in declaring that, in the absence of any evidence to the contrary, Mr. Kunz was authorized to presume that the defendant’s agents would obey the provisions of the ordinance, and not operate .the train at a greater rate of speed than six miles an hour, as limited by the municipal regulation. It is argued that the testimony given at the trial and certain photographs of the locus in quo introduced in evidence show that the injury complained of was not received on a city street, but at a country road crossing, and, though the highway is within the limits of Portland, the ordinance regulating the speed of trains in that city, as applied to the place where the hurt was sustained, is unreasonable, and therefore void. The testimony further discloses that Kunz almost daily passed over the railroad at the crossing where he was *207injured; that he was well aware of the speed usually made at that place by the train; that he knew it was the time for its arrival; and that he heard the roar of the car wheels and the whistle .of the engine, calling for the Sandy Road crossing, and, if it be assumed that he gave any attention to these warnings, which is denied, and concluded he could safely pass in front of the engine, but miscalculated its distance or velocity and was injured in consequence of his temerity, no presumption should be indulged to excuse his culpable neglect.
Considering these subjects in the order in which they are presented, U. Mitchel and S. Pullen testified that the city boundary was about 300 yards and a quarter of a mile, respectively, east of the Sandy Road crossing. The defendant’s counsel, referring to the crossing, inquired of B. P. Roberts, on cross-examination, “The whole country around there is not built up with houses?” and received the following answer: “O, no; it is just country. Ifc is not settled much. It is mostly farmers- live around there, and a brickyard is out there and some people.” The latter witness also referred to two houses near the' crossing, and a field with brush growing by the fences. One of the photographs received in evidence shows the houses mentioned, and the other portrays the railroad and some trees. The witness Pullen, referring to these pictures, testified that they fairly represent the physical facts as they exist. George Gradtz, however, says- upon oath that no idea of the country could be formed from looking at the photographs, and W. H. Moss, referring thereto, testified that the pictures do not entirely represent the right of way of the railroad.
9. The legislature, in order to protect human life and to preserve property, has the undoubted right to regulate, by statute, the speed at which trains shall be operated in densely populated districts, and may delegate such power to a municipal corporation, which is authorized to execute it by enacting and enforcing such rules *208as may be necessary to subserve the public welfare. The mails, when transported by rail, should be carried with dispatch, and business engagements demand that passengers, when conveyed -by the same mode, should be conducted with that degree of speed that is compatible with their safety. A municipal regulation, prescribing the speed at which a locomotive can be run, may be so restrictive, however, as practically to defeat the very purpose sought to be accomplished by the operation of trains, thereby demonstrating that an ordinance is so unreasonable as to authorize a court to declare it ineffective: Elliott, Railroads (2 ed.), § 670. Thus, in Meyers v. Chicago, Ry. Co. 57 Iowa, 555 (10 N. W. 896), where an ordinance of a city limited the speed of railway trains to four miles an hour, and the defendant’s road passed through agricultural lands, fenced on both sides, for three miles after entering the limits of the city, and before reaching the inhabited part thereof, it was held that the attempted municipal regulation operated as a restraint upon commerce, and, as to such part of the road, was unreasonable, and void. In that case, which was an action to recover the value of a cow killed on the defendant’s railroad, the only negligence alleged was that the train causing the injury was run at a greater speed than four miles an hour, in violation of an ordinance of Council Bluffs. A plat of the city was attached to the abstract, and the facts, respecting the location of the railroad, were stipulated by the parties, to the effect that the animal was killed at a crossing of a public road, laid out by the county, the highway where the injury was sustained being 1 y2 miles from the platted part of the city; that the railroad runs 3 miles within the city limits through farm lands before it reached the first laid out addition; and that the distance from where the railway first enters the city to the Union Pacific depot was more than 5 miles. It will thus be seen that all the facts there involved were before the court for its consideration *209and determination. In Evison v. Chicago Ry. Co. 45 Minn. 370 (48 N. W. 6: 11 L. R. A. 434), an ordinance of the City of St. Paul limiting the speed of trains within that municipality to four miles an hour, when applied to the defendant’s railroad, which for two miles was built on the company’s right of way tha,t was securely fenced on both sides, and extended through a sparsely settled and comparatively unimproved country, essentially rural in character, was held to be unreasonable and void as to that part of the railroad in the suburbs of the city. In that case the negligence charged was the running of a train within the limits of St. Paul at a greater speed than four miles an hour, as prescribed by an ordinance, and also in failing to ring a bell while the train was in motion. It was admitted that the train was running at a rate of more than ten miles an hour. When the cause was submitted, the trial.court instructed the jury that, “so far as the ordinance attempted to limit the speed of trains to four miles an hour, it was, in its application to defendant’s road at the place of the accident, and east therefrom to the city limits, unnecessary, unreasonable, and void.” The jury were directed, however, to consider the testimony introduced, and to determine therefrom whether or not the bell was rung as required by law. A general verdict was returned for the defendant and a special finding made that the bell was rung, and, judgment having been rendered thereon, it was affirmed on appeal, the court holding that the instruction, in relation to the speed prescribed by the ordinance, as applied to the place of the accident, was correct. That cause, it will be observed, was tried on its merits. In Studley v. St. Paul & Duluth Ry. Co. 48 Minn. 249 (51 N. W. 115), the plaintiff’s intestate, a young woman, was struck by the defendant’s locomotive, causing her death. In an action to recover the damages sustained, it was alleged in the complaint that the engine drawing a train was run over a public cross-*210mg at a speed of thirty miles an hour, in violation of an ordinance of the City of St. Paul prohibiting the operation of locomotives at a greater velocity than four miles an hour. The answer admitted the existence of the municipal regulation, but alleged that at the place where the injury occurred the ordinance was unnecessary, unreasonable, and void, and also asserted that the woman was hurt in consequence of her negligence while trespassing on the railroad. A verdict for the defendant was given, and, judgment having been rendered thereon, the plaintiff appealed. In affirming the judgment, it is stated in the opinion that the woman approached the railroad crossing on a public highway, which was nothing more than a county road, and when arriving at a point seventy feet from the track an unobstructed view thereof could have been observed for a mile in the direction from which the train causing the injury came; that, reaching a point about five or six feet from the track, she departed from the crossing, when the train was about fifty or sixty feet behind her, and, walking along the berm of the right of way, was struck and injured. It was conceded that the train was running about twenty miles an hour, and that the woman who was injured was accustomed to being about railway tracks and trains, and for a month prior to the accident had been employed at a house situated within three hundred feet of the place where the injury occurred. In deciding that case, Mr. Justice Collins, speaking for the court, says:
“We do not indorse the doctrine, if it anywhere exists, that a person may attempt to pass in front of a coming train at what is nothing more than a country crossing, relying solely upon the belief or on the expectation that the train will approach at a certain rate of speed.”
It would seem that the language quoted is inapplicable to a street in a thickly settled part of a city where it may reasonably be inferred from the observation of *211the court that a traveler on such public highway may, in the absence of any knowledge as to the rate of speed usually attained, attempt at a reasonable distance to pass in front of an approaching engine, relying upon a belief that the train which is being propelled will approach the crossing at a rate of speed regulated by municipal ordinance. In that case the answer denied that the ordinance was suitable to the location where the injury occurred. Testimony as to the character of the highway, intersected by the railroad, must have been received, for the court states that the crossing was nothing more than a county road.
10. In the case at bar, the complaint avers that the City of Portland is duly incorporated, and its common council, pursuant to legislative authority, enacted an ordinance limiting the rate of speed of locomotives to six miles an hour, setting forth a copy of the municipal regulation. The answer admits that Portland is a municipal corporation, and that the State of Oregon has conferred upon it certain police power, but denies, upon information and belief, the other averments in relation to the adoption of the ordinance. It will be presumed that ordinances enacted pursuant to an exercise of police power are reasonable (Elliott, Railroads [2 ed.], § 1082) ; and, as it is needless to allege a fact which the law will presume, it was unnecessary to state in the complaint that the ordinance in question was suitable to the place where the injury was inflicted (15 Ency. Pl. & Pr. 435). If it was desired to controvert the validity of the ordinance because of its unreasonableness when applied to the Sandy Road crossing, it would seem to have been necessary to admit, as in the case of Studley v. St. Paul & Duluth Ry. Co. 48 Minn. 249 (51 N. W. 115), the passage of the municipal regulation, if it was in fact enacted, and to have averred that it was unnecessary, unreasonable, and void as applied to the place where Kunz was hurt. Though a dif*212ference of opinion exists as to the necessity of pleading speed ordinances (3 Bates, Pl., Pr. & Forms, 2272), a sense of fairness suggests that the existence of such a municipal regulation should be alleged when an injury resulting from a violation thereof is relied upon as a basis of recovery for the damages sustained: Elliott, Railroads (2 ed.), § 1698. It would seem to be equally as essential, if the efficacy of a speed ordinance is to be challenged as void because of its alleged inapplicability to a particular locality, that notice thereof should be given by an averment in the answer, so as to overcome the presumption of reasonableness which the introduction in evidence of the municipal regulation affords, and also to give the adverse party an opportunity to prepare for trial on this branch of the case. Whether or not the doctrine thus announced should be regarded as a rule of pleading, is not of much importance so far as this cause is concerned; for, as the cases cited by defendant’s counsel in support of this petition, and which have been reviewed herein, were tried on their merits, and opportunity was given to test the reasonableness of the municipal regulations, a judgment of nonsuit ought not to be based on the incidental remark of a witness or upon photographs of the locus in quo, where an injury was sustained, when it is impossible to state what the condition of the public highway is in the immediate vicinity. Where no unreasonable extent, of territory is included in a city, and there are public streets and road crossings through the sparsely settled portion that cross the tracks of railroads, the city has the right by ordinance, in the protection of the public, to regulate the speed of trains to a reasonable limit: Houston Ry. Co. v. Dillard (Tex. Civ. App.), 94 S. W. 426. The rule is not lacking in support that a person injured at a crossing of a city street has a right to presume that a train will not be run at a rate of speed exceeding the limit prescribed by ordinance: Colorado Ry. Co. v. Rob*213bins, 30 Colo. 449 (71 Pac. 371); Correll v. Burlington Ry. Co. 38 Iowa, 120 (18 Am. Rep. 22); Ramsey v. Louisville Ry. Co. 89 Ky. 99 (20 S. W. 162); Piper v. Chicago Ry. Co. 77 Wis. 247 (46 N. W. 165).
11. Considering the other questions suggested by defendant’s counsel, the testimony shows that for about two years prior to his death Kunz drove over the Sandy Road to and from Portland several times a week, and hence he knew of the existence of the railroad at the place where he was injured. How far he lived from the crossing, however, is not definitely disclosed. His widow testified that he left home in the morning of the accident about 7 o’clock, which was the usual hour of his departure.. W. H. Moss testified that the injury occurred about 7:45 a. m., which was the time when the train generally passed that point, and that the team, which was driven by Kunz, traveled about two and one half or three miles an hour. It may be inferred if Kunz was not delayed on the day he was injured, that in the 45 minutes occupied in driving to the crossing that he lived from 1% to 21/4 miles therefrom. We think this distance is so remote that he was not chargeable with knowledge of the time the train in question usually crossed the Sandy Road, or of the speed which it generally made at that place, though the velocity of the train and the time of its arrival on the day of the accident and also the departure of Kunz from home appear to have been usual. If Kunz had lived near the intersection of the Sandy Road with the railroad, so that he could have seen the trains when they passed, calculated the speed with which they were run at that place, and was observing in these particulars, and if it appeared that the velocity attained exceeded the limit prescribed, no presumption .could probably be indulged that he had the right to rely upon the engineer’s observance of the ordinance regulating the operation of trains in the city. So, too, if it appeared from the testimony that prior to *214the accident he had been at the Sandy Road intersection when the train causing the injury passed on schedule time, he would undoubtedly have been aware of its velocity and of the hour when it went over the crossing; and it is quite likely that no presumption to the contrary could have been invoked. No testimony of this kind was introduced at the trial, and, as Kunz lived at such a distance from the crossing as not to be chargeable with knowledge of the usual speed of the train or the time of its passing the Sandy Road intersection, we think the presumption adverted to is applicable. Kunz undoubtedly heard the roar of the train prior to his injury, but neither accurate knowledge of its speed nor very little information of its distance from him could reasonably have been ascertained by the auditory nerves. It is a well recognized fact in acoustics that a train passing over a culvert or a bridge, even at moderate speed, emits a volume of sound that is not furnished when it runs over a roadbed made of earth. It is also true that the distance at which the noise of a train can be recognized depends upon the direction and force of the wind, and other atmospheric conditions. The testimony introduced herein does not allude to any of these elements which might have tended to indicate the position of the train, in the absence of which, though the roar of the car wheels may have betokened the movement .of an engine, the noise does not necessarily show its speed or distance.
12. If it was manifest from the testimony that the whistle was sounded at the whistling post, which is set to mark a signal for the Sandy Road crossing, and it conclusively appeared that Kunz thereafter attempted to pass in front of the engine, a very different question would have been presented. Mr. Moss, referring to the blast of the whistle given near that point, said: “I could not tell whether it was the Wiberg Lane, or where it was.” In answer to the inquiry, “There is not much difference between the Wiberg Lane and the whistling *215post?” he replied, “No; not at all.” In the former opinion it was inferred that Wiberg Lane is a public highway, intersecting the railroad, and that a whistling post had been set easterly thereof to indicate the place where warning should be given of the approach of a locomotive from that direction towards such crossing, We also thought it fairly inferable from the testimony that no blast from the engine was given at the whistling post which stands 1,500 feet from the Sandy Road crossing, and, as the distance from such post to the Wiberg Lane was not definitely stated, the whistle which was sounded, and which Kunz must have heard, was a signal for the latter highway, and not for the crossing where he was injured. If it be assumed, however, that the whistle which was sounded near the Wiberg Lane was not to announce the advent of the locomotive at that crossing, but was a call for the Sandy Road intersection, as the alarm was not given at the proper place and the distance between the lane and the whistling post, set 1,500 feet southeasterly from the crossing where Kunz was injured, is not definitely disclosed from the testimony, the question of whether or not the approach of the train was announced at a point near enough to the Sandy Road crossing to afford reasonable notice of the danger, becomes an important inquiry. It is safe to assert that on long lines of railway, trains are constantly moving towards public crossings where travelers must pass over the track, and, if business is to be transacted, they must necessarily cross in front of an advancing engine. It is the imminent danger incident to the near approach of a train that prohibits a person from attempting to cross the track in front of it. “The authorities,” says Mr. Chief Justice Elliott, in Korrady v. Lake Shore Ry. Co. 131 Ind. 261 (29 N. E. 1069), “are decisively agiainst the right of recovery by one who voluntarily attempts to cross a track in front of a moving train which he sees not far distant approaching the crossing.” Hearing the whistle of a locomotive, while *216not affording the same degree of information which seeing an engine furnishes, must necessarily be all the announcement that can reasonably be made where an extended view of the track cannot be obtained. If such a warning is given at the proper place, a railway company has done all that prudence demands to warn travelers of the danger of attempting to cross in front of a train. Where a view of a railway track is obscured, there is, of course, a point so near a public crossing, that, if a signal were given at that place, it would not afford adequate notice of the near approach of a train, and there is also a place so remote from the crossing that, if a whistle were sounded at such locality, it would not give the information which a blast from the engine was designed to supply. We have no statute regulating these matters, and hence the minimum or maximum distance from a public crossing between which points a warning of the approach of a train should be given, is not prescribed. The testimony does not affirmatively show that the whistle was sounded at the post set 1,500 feet southeasterly from the Sandy Road crossing, and, in the absence of any statute on the subject, the question whether or not the notice of the approach of the train was reasonable, under the circumstances of this case, was for the jury to determine: Elliott, Railroads (2 ed.), §1158.
13. Complaint is made because in the opinion the word “supposed” is used; the defendant’s counsel asserting that judgments should rest upon facts duly found, and not on conjectures. The word mentioned was used out of an abundance of caution in view of the conclusion reached to grant a new trial. Whether or not the engineer saw the team on the track, as intimated, was not disclosed by the testimony, and for that reason the word “supposed” was advisedly used.
Believing that the former opinion correctly states the law applicable to the facts involved, the petition for a rehearing is denied.
Rehearing Denied: Reversed.