The opinion
ON PETITION FOR REHEARING
*676 Bert E. Joachims and Harry Q-. Spencer, Portland, for respondent.
Lamar Tooze, Lamar Tooze, Jr., and Phillips, Coughlin, Buell & Phillips, Portland, for appellant.
Before Perry, Chief Justice, and Rossman, Lusk and Warner, Justices.
On Petition for Rehearing
ROSSMAN, J.
A petition for a rehearing, filed by the plaintiff-respondent, challenges our decision, particularly our holding that the circuit court erred when it overruled the defendant’s motion to withdraw from the jury’s consideration the charge that defendant’s train crew failed to maintain an adequate lookout.
*677 Although the plaintiff-respondent offers several criticisms of our review of the testimony given by the defendant’s engineer and fireman, it leaves virtually unmentioned the following statement which forms a part of our decision:
“The plaintiff presented no direct evidence indicating that the members of the defendant’s train crew did not see his vehicle as it drew near the railroad crossing and, therefore, when he rested, the presumption that the defendant had exercised due care in the maintenance of a lookout remained unimpaired so far as the plaintiff’s direct evidence upon the subject bore.”
It is obvious that unless the record contained evidence capable of supporting a finding that the train crew failed to maintain an adequate lookout, the plaintiff’s charge upon that subject could not be submitted to the jury. Criticism of the testimony given by the train crew and of our report of it, even though the criticism is so meritorious that it entirely obliterates the crew’s testimony, does not establish that the crew did not maintain a lookout.
Plaintiff-respondent says that we erred when we made the following statement:
“Masloskie swore that he saw the plaintiff’s car when the engine was 550 feet from the crossing.”
Masloskie was the engineer. It was the fireman, and not Masloskie, who made the statement that the plaintiff’s car was seen when the engine was 550 feet from the crossing. Masloskie testified that he saw the plaintiff’s car when it was 550 feet from the crossing. The fireman, William H. Green, referring to the plaintiff’s car, gave this testimony:
“Q About where was the car, Mr. Layne’s car— *678 when I say ‘ear’ I mean pickup truck — about how far from the crossing was it when you first saw it?
“A Well, when I first saw it was when we were way back, probably 500 or 600 feet.
“Q And about how far from the crossing was the car at that time? How far from the crossing was Mr. Layne’s truck?
“A He was about the same distance.”
Under cross-examination Green gave a detailed account of the movement of the three cars in 92nd Avenue and of his train as the four vehicles approached the crossing. Upon the request of plaintiff’s counsel he placed marks upon a large chart which indicated where the vehicles were at succeeding stages of their movement. Masloskie’s testimony upon the subject was as follows:
“Q When did you first see the automobile or any automobile?
“A Well, I judge he was back there about 550 feet when I first saw the headlight.
“Q You mean he was 550 feet from the crossing ?
“A Yes, 550 from the crossing.
“Q Now when you say ‘he’ you are referring to the plaintiff, the man that was injured?
“A The man that was driving the pickup.”
Since the speed of the train was at least as great as that of plaintiff’s car, it may be inferred that the latter was possibly 550 feet or more from the crossing when Masloskie saw it. But we shall not rest upon that. We misstated the testimony that Masloskie gave. Although we made that error, we do not believe that it requires a holding that our previous decision was unsound.
The petition for rehearing states that the engineer, Masloskie, did not notice that a collision was impending until his engine was within 25 feet of the crossing. *679 Masloslde died before the trial occurred. However, before his death a short examination of him was made by plaintiff’s counsel in order to preserve Masloskie’s testimony. He testified that when the train “was 25 feet away from the crossing” he was aware that plaintiff’s car would not stop. At that point, according to his further testimony, “I just dynamited it — we call it dynamited — put it in full operation.” Shortly he was asked:
“Q Up to the time you dynamited it, you made no attempt to slow down?
“A Yes, I drawed off a little air to hold her down so that I could stop.”
The fireman, Green, under cross-examination, gave this testimony:
“Q Now, you said to the jury that Masloslde noticed an impending accident when the train was 50 feet from the crossing.
“A That’s right.
“Q How do you know that?
“A Well, by — from the crossing to just one car length would be just about 50 feet.
“Q How do you know that he knew the accident was impending at that particular time?
“A Well, I can explain that to you, too, because the last whistle that he was making was interrupted on account of it, and instead of the regular whistle, why, he started a succession of short whistles.
“Q He gave an emergency whistle?
“A Yes.
“Q Now, I believe you testified you could tell by watching the engineer that he knew the car was— a collision was imminent when the train was about 50 feet from the crossing; isn’t that correct?
“A That’s right.
*680 “Q And did you make that observation because you saw the engineer at that time throw the train into full operation?
“A I could tell by the sound of his whistle that there was going to be an accident.
“Q A collision. And that’s when the train was about 50 feet from the crossing; is that correct?
“A Yes.
“Q Now he had before that time made an emergency application of his brakes ?
“A You mean—
“Q (interposing) I mean did he first make the emergency application? I believe you call it dynamiting, don’t you?
“A That’s right.
“Q Did he dynamite before he blew the emergency whistle?
“A He was blowing the whistle and throwing it in emergency all at the same time.
“Q All at the same time.
“A It was just instantaneously.”
Green also testified (cross-examination):
“Q Now, as you approached the 92nd crossing, I believe you testified that you — the train was— you threw the throttle off.
“A Yes.
“Q That is, you operated without the full power of the engine?
“A Yes.
“Q And I take it you were drifting?
“A That’s right.”
For the sake of complete accuracy, we add that the course was slightly downgrade.
Green, the fireman, testified that as the train approached the crossing Maslosláe “was sitting just like this with his head out the window.” The engine cab *681 had a broad expanse of glass on all four sides which enabled the crew to see over a wide range. A photograph of one of the locomotives in which a member of the engine crew had his head ont the window indicates that one in that position was afforded a good view. Upon cross-examination. Green testified that, although he was looking both to the right and to the left as the train neared the crossing, Masloskie confined himself to the left (the direction from which the plaintiff was approaching).
The brief which accompanies the petition for a rehearing argues that growths of trees and brush in and near the southeast corner of the crossing rendered it impossible for the train crew to have seen the plaintiff’s vehicle as the latter and the train approached the site of the impending collision. The brief declares that we failed to give attention to photographs which showed the brush and small trees. It points out: “The height of the brush and trees referred to was estimated by the plaintiff as being up to 15 feet in height.” It notes, however, that “the train crew occupied a superior vantage position with respect to the height above the rails at which they could make their observation of traffic on 92nd Avenue.” Their “superior vantage position” as pointed out in the brief was due to the fact that the defendant’s Diesel locomotive was much taller than an automobile. According to the brief, “the eyes of the train crew would be about 10 or, at most, 11 feet above the rails.”
Our decision quoted a part of the testimony given by the plaintiff in which he conceded that when he reached a point in 92nd Avenue “to the south of that house” (150 to 200 feet from the track), he was able to see a train approaching 92nd Avenue from the east *682 when it reached a point “about the fourth power pole east of 92nd Avenue.” Power poles were 100 feet apart. The plaintiff qualified his answer, as our quotation from his testimony indicates, by saying: “If that train was properly lighted.” We resorted to that testimony, not for the purpose of showing that the plaintiff should have seen the train before being struck, but in order to point out that when the train crew swore that they saw his headlights, their testimony was not impossible of belief. In other words, since the plaintiff conceded that a motorist, 150 to 200 feet south of the track, could see a locomotive at the fourth power pole east of 92nd Avenue, if the locomotive “was properly lighted,” it is manifest that the brush and trees were not an obstruction to an adequate view. Since the train was thereby within the view of a motorist, an automobile which had its headlights burning, like the plaintiff’s, could have been seen by the train crew. We must bear in mind that when the plaintiff approached the crossing, seated as he was behind his steering wheel, he was much nearer to the pavement than the train crew in the cab of the engine. Our previous opinion states that one of the photographs which was received in evidence, and which was taken by a photographer who stood upon the track, rendered plainly visible an automobile which was parked in front of the aforementioned house.
We do not believe that we have misinterpreted the photographs. The plaintiff argues that the distances depicted in them were somewhat different from our statement of them. If he is correct in his calculations, and if ours are wrong, the differences are not sufficient to be material.
The brief calls attention to Newbern v. Exley Produce Express, 66 Adv Sh 95, and seems to think that *683 that decision treated the issue of failure to maintain an adequate lookout different from that in the case now before us. In the Newbern case, the defendant’s truck, if the plaintiff told the truth, was upon the wrong side of an icy, treacherous pavement. In that case, the defendant was under a duty, created by ORS 483.302, to yield to the plaintiff the part of the pavement upon which its truck was approaching the plaintiff’s car. The fact that defendant’s driver, notwithstanding the demands of that section of our laws, did not quit the left side but continued upon it was capable of warranting, in our belief, an inference that he did not see the plaintiff’s car. In short, it was capable of warranting an inference that he was not maintaining an adequate lookout ahead. In the present case, the defendant’s train crew had a right to believe that the plaintiff’s car would yield to the train the right of way and, accordingly, the fact that the train did not stop before crossing 92nd Avenue could not justify an inference that the engineer was not maintaining a reasonable lookout.
The petition for a rehearing is denied.