Connie Cleveland, Appearing by and Through Archie Cleveland, Her Guardian Ad Litem v. Southern Pacific Company

Connie Cleveland, a minor, was injured when an automobile in which she was a passenger drove into the side of a Southern Pacific Company train standing across an Oregon highway on the night of August 28, 1967. Appearing through her father, Archie Cleveland, as guardian ad litem, she sued the railroad company in this diversity action to recover seventy-five thousand dollars damages for her injuries.

The jury returned a verdict for plaintiff in the sum of fifteen thousand dollars. The trial court granted judgment notwithstanding the verdict, for defendant. In the alternative, to be operative in the event the judgment n. o. v. were not sustained on appeal, the trial court granted a new trial. This appeal followed.

The only allegation of negligence which is debatably supported by substantial evidence is the asserted failure of the railroad to give an adequate warning of the presence of a train standing on the crossing on the night in question. Plaintiff does not here question the district court’s rejection of plaintiff’s contention that a warning was required because the crossing was extra-hazardous. Instead, plaintiff argues, as she also did in the trial court, that a warning was…