# Sargent v. Southern Pacific Transportation Co. > Oregon Supreme Court · December 29, 1972 · 264 Or. 435 URL: https://www.frixlaw.com/law-library/cases/9537326 ## Case - **Full name:** SARGENT, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Respondent - **Court:** Oregon Supreme Court - **Decided:** December 29, 1972 - **Citations:** 264 Or. 435; 504 P.2d 729; 1972 Ore. LEXIS 525 - **Precedential status:** Published - **Opinion:** Dissent by Tongue - **Judges:** McAllister, Denecke, Holman, Tongue, Howell, Bryson - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9537326 ## Opinion text *443 TONGUE, J., dissenting. As stated by the majority, the principal issue between the parties on this appeal is whether this railroad grade crossing was “extra hazardous,” as previously defined by this court to mean one which is so dangerous that a reasonably prudent motorist cannot safely use it unless the railroad takes measures in excess of those usually taken to warn motorists—in this case by the erection of a wooden “cross-buck” sign. It is equally well established, however, that whether a particular railroad crossing is extra-hazardous depends upon conditions existing there at the time of the accident and that a crossing can be extra-hazardous temporarily or from time to time, as conditions may change. Rogers, Adm’r. v. So. Pac. Co. et al, 190 Or 643, 659 , 227 P2d 979 (1951); Fish v. Southern Pacific Co., 173 Or 294, 302 , 143 P2d 917 , 145 P2d 991 (1944); Finn et al v. Spokane, P. & S. Ry. Co., 189 Or 126, 136-137 , 214 P2d 254 , 218 P2d 720 (1950). To a disinterested observer uninitiated in the vagaries of railroad crossing law it might appear that when a railroad crossing is occupied on a dark night by a freight train consisting of 102 box ears, with no lights of any kind between the lights on the engine one-quarter of a mile in one direction and the lights on a caboose three-quarters of a mile in the other direction, and with not even reflectors, much less lights, on any of the intervening box cars, a reasonably prudent motorist might fail to see the nnlighted box cars in time to stop unless the railroad took some additional measures to warn motorists of that danger. Such a disinterested observer might also conclude that *444 the railroads should anticipate that a motorist might fail to see the unlighted cars on a dark night and that for this reason it -would not be unduly burdensome to require that railroads attach inexpensive reflectors or strips of luminous tape on the sides of box cars, in the absence of flashing warning lights at such crossings. On the contrary, however, and as set forth in. defendant’s brief in this case, this court has held, following precedents established by the courts of other states, that an unlighted .train of box cars or flat cars moving over or standing upon a crossing is of itself a sufficient warning of its presence, as a matter of law, even on a dark night, so as to relieve the railroad of the duty to give any further warning in such a case and that it is the duty of the motorist to maintain such a speed and lookout as to enable him to see and avoid striking the unlighted box cars or flat cars, even on a dark night. See Carlson v. Southern Pacific Co., 219 Or 77 , 346 P2d 381 (1959), and Murphy v. Southern Pacific Co., 223 Or 522 , 355 P2d 236 (1960), among other cases. This and other fixed and rigid rules of railroad crossing law have been criticized by legal writers. ① These include Leon Green, who once described the rule that a train on a crossing “gives notice of its presence” as a “cliche” which has no logic other than that “the *445 ■victim is bent on suicide.” ② According to Green, this rule “illustrates how compulsive a cliche can become in controlling the thought of the most intelligent minds.” He then cites the decision of this court in Finn et al v. Spokane, P. & S. Ry. Co., 189 Or 126 , 214 P2d 354 , 218 P2d 720 (1950). In Finn, this court, over the dissent of two of its members, reversed the granting of an involuntary nonsuit under somewhat similar, although different facts, and remanded the case for jury trial, stating (at p 134): “* * * Some courts apply ‘horse and buggy’ rules to a motor age and seem to imply that there could be no liability under any factual situation. * * *99 and (at p 137): “We are not unmindful that the numerical weight of authority is contrary to our conclusion that there is some substantial evidence tending to show negligence. However, it is believed that the modern trend of authority is in keeping therewith. * * *99 Finn, however, was decided in 1950, prior to Carlson, Murphy and other more recent decisions by this court. ③ It may also be contended that the rule to the effect that the presence of a train of unlighted box cars on a crossing gives notice of its presence, as a matter of law, so as to relieve the railroad of any *446 duty to give further warning, even on a dark night, is inconsistent with today’s trend toward the development of higher standards of care in the area of product liability, as well as in other areas of the law. ④ This is particularly true since the advent of comparative negligence, as well as where, as in this case, one of the decedents was a passenger in the automobile, with the result that any contributory negligence by the driver in failing to stop at the crossing is not imputable to such a decedent. According to the majority, “[i]t may be that this state of the law will someday be re-evaluated in the light of changing conditions and values.” In my opinion, that time has now arrived. I would agree, however, that this court should not undertake to consider possible changes of such importance unless and until it has the benefit of either written briefs or oral argument on both sides of this controversial question. In this case plaintiff’s reply brief did not respond to defendant’s contentions and authorities on this subject. This is understandable, because plaintiff had no reason to believe that this court, having stated such a rule in several cases during the past 20 years, would now consider abandonment or change of that rule. Under these circumstances, and because of the public importance of this question, as well as the fact that two persons were killed in this tragic accident, I would set this case for reargument, with leave to both parties to file additional briefs. Cf. dissenting opinion in State Construction Corp. v. Scoggins, 259 Or 371, 391 , 485 P2d 391 (1971). For these reasons, I most respectfully dissent. See, among others, 2 Harper and James, The Law of Torts 972, § 17.2 (.1956), and Prosser on Torts (4th ed 1971) 188, § 35, citing McNealy v. Portland Traction Co., 213 Or 659 , 327 P2d 410 (1958), as an example of a case in which many .courts still follow the rule first stated by Mr. Justice Holmes in B. & O. R.R. v. Goodman, 275 US 66 , 48 S Ct 24 , 72 L ed 167 (1927). That rule, applied strictly, would require an automobile driver approaching a railroad crossing with an obstructed view to stop, look and listen, and if he cannot be sure otherwise that no train is coming, to get out of'his car. Green, Traffic Victims: Tort Law and Insurance 49 (1958). As early as 1940, however, the rule that the existence of a train on a crossing is sufficient notice of its presence was criticized in Oregon and it was proposed that if there is evidence that the train carried no lights, the question of negligence by the railroad should go to the jury regardless of whether the crossing was otherwise “extra hazardous.” See Note, 20 Or L Rev 84, 88 (1940). See Note, The Standing Train Doctrine—An Outmoded Standard of Care, 36 Mo L Rev 586 (1971). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9537326. Public record. Not legal advice.