258 N.W. 511 | Minn. | 1935
Lead Opinion
The action is to recover for personal injuries sustained by plaintiff when the automobile in which he was riding ran into a freight train upon a grade crossing on Marshall street near Thirty-fourth avenue northeast in Minneapolis. The Minneapolis, St. Paul Sault Ste. Marie Railway Company, hereafter referred to as the Soo road, here crosses Marshall street almost at right angles. The main track is laid on a bridge of the customary timber construction supported by piers or bents of timber. One bent is in the center of the street, one bent near the curb Jine on either side, leaving a 16-foot lane of travel on either side of the center bent. There is another bent east of the easterly bent mentioned; between the two, on the same level as the street, is the track of the Anoka Electric line, which runs southerly along the easterly side of Marshall street. Parallel with the bridge and about 28 feet south of the southerly edge of the bridge, a switch or yard track of the Soo road crosses *318 Marshall street at grade. This is called the low track. It connects with the main line a few hundred feet west about where the main line crosses the Mississippi river. This low track serves an elevator and a switch yard to the east of Marshall street. About 46 feet north of the bridge a railroad track crosses Marshall street and connects the Anoka Electric line with the Soo road main line at about the same point where its low track so connects. The distance from the center of the northerly grade crossing to the center of the southerly grade crossing is 104 feet measured along the center line of Marshall street. That distance is level, but is slightly lower than the street north and south. Marshall street runs practically north and south for several blocks on either side of the bridge. The clearance between the surface of the street and the sills of the bridge is about 12 feet, and the rails are about 15 feet above the street. The width of the bridge is about 28 feet. The end timber of the center bent has the customary slanting bands of black and white paint, and also a reflector, some two and one-half feet from the bottom. Extending a foot or two from the floor sill over the center bent, at each end thereof, is an electric light with a reflector so as to illumine the black and white bands thereon. About 12 feet south of the low track and about 26 feet above the center of the street is suspended a 1,000-candle power electric light, and about 45 feet north of the Anoka Electric crossing, at about 26 feet above the center of the street, a 400-candle power electric light. These two lights are maintained by the city and the two on the bridge by the Soo road. Before reaching the grade crossings on either side of the bridge are the customary cross signs — two planks crossed, fastened to a post, some 10 or 12 feet above the ground, the planks being painted white and bearing in large black letters the words "Railroad Crossing." The bridge and tracks here involved are owned by the Soo road. The train into which the automobile in which plaintiff was a passenger ran was operated by the other defendant under a traffic arrangement with the Soo road, the terms of which are unimportant for a decision herein. *319
The accident occurred at 3:10 a. m. Sunday, October 25, 1931, on the return of a party of eight young people who had spent the night at a resort located on the East Side River Road, about five miles north of Minneapolis. Plaintiff and two young ladies rode in a Chrysler roadster, owned and driven by one Patterson. One young lady was seated between the driver and plaintiff. The other lady was seated on plaintiff's lap and facing the driver. The other four rode in a Ford roadster and were seated in the same manner as those in the Chrysler. The Ford was following about a block or less behind the Chrysler as they approached the bridge. Just before their approach a freight train of 30 cars, being transported by the Minneapolis, Northfield Southern Railway Company, came from the Soo road yard east of Marshall street upon the low or south grade track and was to cross the river upon the main line of the Soo road. It stopped before crossing the Anoka Electric track, and the head brakeman with a lantern walked ahead of the train as it moved across that track and Marshall street. On the westerly side of the street he boarded the locomotive to ride up to the main track switch. Before throwing the switch he had to go to a box a short distance ahead to ascertain from the instrument there attached whether or not the block about to be entered was open and clear of other trains. He ascertained that it was, came back, threw the switch, and signaled the engineer to come ahead. While this took place the train was standing so that a gondola car, the twelfth from the locomotive, obstructed the westerly lane of Marshall street. About the same moment that the engineer of the train received the signal to go ahead the Chrysler car struck the gondola car mentioned, and a moment or two later the Ford did the same thing to the left of the Chrysler. The cars fastened to the gondola car and were dragged along and crushed against the embankment on which the main track was laid. In the collision and the escape from the Chrysler roadster plaintiff was severely injured.
Plaintiff, being a passenger, cannot be charged with the negligence of the driver. So, as we view the appeal, the court's ruling directing a verdict for defendant and the judgment thereon should *320 be sustained only if the evidence fails to make the alleged negligence of both defendants a jury issue. We therefore lay out of consideration the question of plaintiff riding in a car whose lights did not clearly reveal such an obstruction as a gondola car, and with a woman in his lap obscuring his vision ahead, and shall decide the appeal upon the question whether any actionable negligence can be found in the evidence against either defendant which could be considered as a proximate cause or a contributing cause of plaintiff's injuries.
The principles stated and applied in Crosby. v. G. N. Ry. Co.
"Common experience is that the occupation of a highway crossing by a train is visible to travelers on the highway, including automobile drivers whose cars are properly equipped with lights and who exercise ordinary care. It would seem that a train upon a crossing is itself effective and adequate warning. It has always been so considered. This is so whether the train is moving or standing. A railroad company is under no obligation to light an ordinary highway crossing at night so that its trains thereon may be seen by travelers."
As far as lights were concerned, this was not a hazardous crossing. It was protected by two powerful electric lights, one a few feet south of the crossing involved and one about 160 feet north thereof. It cannot be considered a dangerous crossing in so far as obstructing or obscuring the visibility of a train standing or moving over the same to travelers upon the highway. Another matter which merits some consideration is that by L. 1925, c. 336 (1 Mason Minn. St. 1927, §§ 4743-1 to 4743-17, inclusive), the jurisdiction is given the railroad and warehouse commission to prescribe and order what signs and devices should be installed and maintained by a railroad for the protection of travelers at highway grade crossings. It is readily seen that if there be diversity in the protective means installed or furnished at different railroad crossings the traveler may be misled or confused to his undoing. There is no evidence that the commission has ordered or required any other safeguards at this crossing than those now present.
Of the authorities cited by plaintiff, those involving a traveler on the highway being struck on a railroad grade crossing by an approaching train are not in point, and we omit any discussion of them. Nor need anything be said concerning cases where a motor vehicle, operating at night, stops on a highway without a tail-light and is run into, resulting in injury to persons or property; for there the violation of a statute furnished the evidence of negligence, such as Tully v. Flour City C. O. Co.
Since the conclusion is reached that the evidence fails to show any negligence on the part of defendants or either of them which caused or contributed to cause plaintiff's injury, it is not necessary to consider the question of contributory negligence or of Patterson's negligence, nor any ruling upon evidence bearing thereon. Nor is the question of proximate cause of the injury reached. Of course, errors assigned on the admission or exclusion of testimony bearing upon the issue of the negligence of either defendant must be considered and determined. Of these the only ones meriting attention are: (a) The reception of the testimony of Miss Luftman, the clerk in the office of the city light inspector, and of the reports and records received and kept by her in such office; and (b) the testimony of Loomis and Peterson concerning certain experiments made at the locus in quo. Miss Luftman's testimony related to the candle power of the two street lights referred to and the reports and records received indicating that they were burning at the time of the accident. There was no error here. The reports and records were such as were regularly kept in the business of the city in its purchase of electricity for street lighting, and the witness was in charge of them and her work was to make entries from the reports into the records. 2 Dunnell, Minn. Dig. (2 ed. *324 Supp. 1932) § 3347. Moreover, all the evidence was that these lights were burning at the time the autos ran into the gondola car. There was no error in permitting Loomis and Peterson to testify as to the place in the street, south of the bridge, where the rays of light from the north light strike the eye. There had been no change in the location of the light. We see nothing objectionable or prejudicial in this. It was merely ascertaining a fact by observation. Loomis was a civil engineer and made a plat of the location, and could have made a profile of the street, the bridge and lights, whereby it could have been shown where a straight line, projected from the north lamp and passing under the bridge, would strike a man's eye, or the side of a gondola car on the low track. But such a profile would be no more accurate or reliable than the observation of a person made from a position on the low track or upon the street south of the bridge from which he could see the north light.
The judgment is affirmed.
Concurrence Opinion
I concur in the result. I do so solely on the ground that ordinary care required no more warning than was here given by the conspicuous crossing sign. I also think the result in the Crosby case,
Today it is a matter of common knowledge that automobiles are driven at night on our great, wide, straight highways at speeds which do not allow adequate time or space in which to stop for unusual objects such as freight trains completely obstructing the highway unless some warning of the possible or probable presence thereof is given, especially where, as in the case of such trains, the bodies of the cars are apt to be above the direct beams of the automobile lights, which the law requires to be projected below 42 inches at 75 feet from the vehicle. Recognizing this, our counties and state highway department place conspicuous warnings of all variations from the normal road. Drivers of ordinary prudence have grown to rely on the presence of such warnings. Certainly ordinary care does not require an automobile always to be driven in the expectation that a railroad train may suddenly and without warning loom up across the highway. To fail to recognize this fact is to apply horse and buggy law to a motor age and is a failure to recognize the common experience of mankind. Statistics disclose that 28 per cent of railroad crossing accidents result from vehicles being driven into the sides of moving or standing trains. A variety of circumstances may be suggested where persons driving with ordinary care might suddenly be confronted with a railroad crossing encumbered by a train. Obviously, ordinary care requires some warning of the presence of the crossing upon which long trains may be passing or standing. The luminous signs of the reflector type in common use at crossings and other places of danger are very effective warnings, and one placed at the outer edge of a railroad right of way would relieve the crossing of most of its hazards. In this case the owner of the tracks placed a large "buck" sign at a conspicuous place where approaching automobile lights must reveal it. As a matter of law under the circumstances I think ordinary care required no more.
Concurrence Opinion
I agree with Mr. Justice Loring. *326
