# Brown v. Spokane, Portland & Seattle Railway Co.

> Oregon Supreme Court · September 20, 1967 · 248 Or. 110

URL: https://www.frixlaw.com/law-library/cases/9537911

## Case

- **Full name:** BROWN, Respondent, v. SPOKANE, PORTLAND AND SEATTLE RAILWAY COMPANY Et Al, Appellants
- **Court:** Oregon Supreme Court
- **Decided:** September 20, 1967
- **Citations:** 248 Or. 110; 431 P.2d 817; 1967 Ore. LEXIS 382
- **Precedential status:** Published
- **Opinion:** Dissent by Denecke
- **Judges:** Denecke, Perry, Sloan, Goodwin, Denecice, Holman, Lusk, Hammond
- **Cited by:** 9 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/9537911

## Opinion text

DENECKE, J.,
dissenting.
I dissent from that part of the opinion holding that the charge that the defendants failed to exercise proper control presented no question of fact and the defendants were entitled to a directed verdict.
The engineer testified that he estimated the loco *126 motive was in the center of the street and was traveling two to five miles per hour when he realized the automobile in which plaintiff was riding was not going to stop. He also testified that at that speed he could stop the locomotive in ten feet. At the time of the collision the locomotive had traveled 30 feet from the center of the street and was four feet within the lane of travel in which the automobile was being operated.
From this evidence I am of the opinion that the jury could infer that the engineer did not exercise reasonable control. It could have found that in the exercise of reasonable control the engineer could have stopped the locomotive before it entered the lane of travel in which the automobile was being operated.
The practical necessity of permitting trains to move expeditiously is a good reason not to permit juries to hold a fast-moving train negligent for failing to stop at every vehicle crossing when an automobile is approaching. That reason is not present where the engineer knew the automobile was not going to stop and the locomotive was being operated at a speed which permitted it to be stopped before it entered the automobile’s lane of travel. In such circumstances I am of the opinion that the issue -of control is one for the jury. Bailey v. Pennington, 274 F2d 328 (8th Cir 1960).
Sloan and Holman, JJ., concur in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9537911. Public record. Not legal advice.