Opinion

Espinosa v. Southern Pacific Transportation Co.

  • 50 Or. App. 561
  • 624 P.2d 162
Court
Court of Appeals of Oregon
Filed
May 5, 1981
Status
Published
Author
Joseph
On the bench
Buttler, Joseph, Roberts, Campbell
Cited by
11 cases
Authority
More cited than 5.2%

The opinion

JOSEPH, C.J.,

dissenting in part.

SP characterizes its evidence about the lookout issue as uncontradicted. Plaintiff reviews the evidence of *578 the train’s excessive speed and concludes that "[t]he jury could therefore infer that the speed of the train, whatever it was, impaired the crew’s ability to keep a meaningful lookout.” Similarly, plaintiff urges that the evidence of failure to sound a whistle at all or in accordance with SP’s operating rules or to ring the engine’s bell, the force of the impact and the fact that the locomotive was being operated in reverse all permitted the jury to disbelieve SP’s evidence of adequate lookout.

Plaintiff did not allege failure to exercise control, but excessive speed and failure to sound a timely warning were all specifically alleged as negligence. Moreover, plaintiff withdrew an allegation that operating the train in reverse was negligence. Prior to the time the train was about 150 feet from the crossing, there was nothing for the crew to see to alert them to what the driver would do, and there was no evidence that the accident then could have been avoided.

Perhaps, if plaintiff had alleged speed, lookout and control, the logic of Troupe v. Ledward, 238 Or 531, 536 , 395 P2d 279 (1964), would apply:

"Speed, control, and the duty to maintain an adequate lookout are interrelated. As speed increases, the duty to be alert and have one’s automobile under adequate control increases. Accordingly, when the plaintiff entered the intersection at an impressive speed and saw two cars waiting to enter and also saw three cars approaching from the opposite direction, it was her duty to be alert and maintain a reasonably adequate lookout. Whether her lookout which did not observe the defendant’s car until she was entering the intersection and which did not see it again until an instant before the collision was adequate was a jury question.”

Given plaintiff’s choice not to allege lack of control, I think the reasoning in Brown, quoted above, in note 17 of the majority opinion, applied, for there was no evidence that failure to maintain a lookout was a causative factor in addition to the specific acts of negligence also alleged. To hold otherwise would require a conclusion that findings of excessive speed (specifically alleged), failure to sound a warning (specifically alleged) and operating the engine in reverse (alleged but withdrawn) would have permitted the *579 jury to conclude that SP was liable for another kind of negligence that was not causative.

Submission of the lookout issue was prejudicial error, and there should be a new trial.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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