16 N.W.2d 553 | Minn. | 1944
The collision occurred on one of defendant's seven switch tracks which extend northerly and southerly across Grove street in the block bounded on the east by Olive street and on the west by Pine street. The tracks lead north to defendant's main lines and south to numerous loading platforms and buildings. The area is a commercial one. There are electric street lights maintained by the city at the corners of Grove and Pine and Grove and Olive streets. *490
Plaintiffs' version of the accident is that earlier in the evening Conroy had been on the east side of St. Paul, where he picked up Flaherty and one Whittier to give them a ride downtown. Whittier was not produced as a witness because he could not be found. Conroy testified that it had rained heavily for about two hours early in the evening and that at the time of the collision it was "a little wet"; that as they got near Olive street they saw a steam switch engine proceeding north across Grove street emitting steam and smoke and that the street light at the Olive street corner was not lit. They claim that there was a little fog; that the smoke circulated around toward the back of the engine and stayed down near the ground for awhile and then went up; that Conroy was driving at a speed estimated to be from 10 to 20 miles per hour; that he did not drive through the smoke and steam but approached it; that when the smoke and steam had lifted Conroy suddenly saw a freight car about 25 feet ahead of him standing across the path; that he tried to stop, but without success; and that his automobile collided with the freight car.
According to defendant's version, the street light at Olive street was lit; no steam locomotive crossed in front of plaintiffs, and consequently there was none present to emit steam and smoke as claimed; Conroy's car collided not with a freight car standing alone across the street but with the side of a freight car which was part of a train; and consequently the collision was due solely to Conroy's negligence in failing to see the train, clearly visible under the circumstances.
To substantiate its version, defendant called as witnesses four members of a switching crew who were engaged that night in switching operations at the place in question with a Diesel locomotive, a flagman or watchman, and a city policeman, who at the time of trial was in military service. All of them testified that the street lights at both Olive and Pine streets were lit. Members of the switching crew and the flagman testified that it was dry that night, but the latter also testified that he was home in bed when plaintiffs claimed it rained. They also claimed that there was *491 no fog, steam, or smoke at the scene of the accident and that there was no steam locomotive engaged in switching operations at the time and place in question. It was not shown that they had made any observation with respect to the matters testified to prior to the collision. The source of their knowledge that there was no steam locomotive in use at the time and place mentioned was not revealed, except that the fireman said that there was none there that he knew of and that he did not see any. Furthermore, although the watchman was on the lookout on the west side of the train and the light from Conroy's automobile showed under the cars, he testified that he did not see the light from Conroy's automobile as it approached. The testimony of defendant's witnesses was to the effect that there were about 20 freight cars south of Grove street on the track near Pine street; that the Diesel switch engine pushed a string of four or five cars ahead of it to connect with the other 20; that these cars were coupled with the others preparatory to moving all of them northward across Grove street; that after the coupling was made the train extended from a point south of Grove street to a point north of it; that while the train was standing and obstructing Grove street the switch foreman, who was in charge of the train and the switching operations, went into a shanty nearby to use a telephone to get orders concerning the movement of the train; and that while lie was so engaged Conroy drove his automobile into the side of the freight car standing across Grove street.
We do not state the facts upon which the defense of contributory negligence was based, except that there was evidence to show that Conroy had an odor of liquor on his breath and that Flaherty had been drinking to such an extent as to appear to be intoxicated, for which reason lie was taken into custody. Notwithstanding their condition, they apparently were able to observe and comprehend what transpired.
Upon the trial plaintiffs failed to offer any proof of the ordinance, but that fact is not important in the view we take of the case. The court submitted the issues of negligence and contributory negligence to the jury with an instruction that plaintitffs were *492 not entitled to recover unless defendant's negligence was the proximate cause of their injuries. Plaintiffs had verdicts. Upon defendant's motion, the court in both cases ordered judgment in its favor notwithstanding the verdicts upon the ground that it was not negligent and in Conroy's case upon the additional ground that he was guilty of contributory negligence. Plaintiffs appeal.
1. Regardless of whether it was guilty of common-law negligence, defendant is liable as a matter of law for intentional violation of statute proximately resulting in the injuries to plaintiffs. At least three statutes denounce the obstruction of a highway as a misdemeanor. Two of them provide in general terms that to obstruct a public highway is a misdemeanor. Minn. St. 1941, §§
Cases like Ausen v. M. St. P. S. S. M. Ry. Co.
"* * * 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.
2. The standing train or freight car, as the case might be, obstructing the street was, as, the jury found, the proximate cause of the collision. There was evidence to sustain a finding that the train could not be seen because of some smoke and fog which obstructed, in part at least, the vision of Conroy, the driver of the automobile. Where the driver of an automobile collides with an obstruction upon a highway because atmospheric or other conditions interfere with his ability to see it in time to avoid the collision, the presence of the obstruction upon the highway is a material element or substantial factor in the happening of a resulting collision with it and consequently a proximate cause of any resulting injury. Anderson v. Johnson,
3. The defense of plaintiffs' contributory negligence was not open to defendant. Where injury is sustained as the result of intentional obstruction of a highway in violation of the statute, the contributory negligence of the person injured is no defense. Hanson v. Hall,
It is only where defendant's acts constitute an intentional violation of statute that the defense of contributory negligence is not open to him. Hanson v. Hall, supra. This type of case is to be distinguished from those arising under statutes declaring the effect of a violation thereof, as, for example, the highway traffic regulation act (Minn. St. 1941, §§
4. A further point is made by defendant that the weight of the evidence is so overwhelmingly in its favor that it is entitled to judgment notwithstanding the verdicts, under the rule of Spensley v. Oliver I. Min. Co.
Reversed with directions to reinstate the verdicts.