241 Minn. 246 | Minn. | 1954
Appeal from an order granting defendant’s motion for judgment notwithstanding the verdict.
This personal injury action, brought by a front-seat automobile passenger, arises out of a collision between an automobile and a passenger train which was backing up over a railway crossing in the city of Bemidji where Midway Drive, a four-lane concrete highway of a width of 40 feet, intercepts a main-line railway track and a switch track. Although the directions are not exact according to the points of the compass, it may be assumed for the purposes of this decision that the four-lane highway runs north and south and the main track runs generally east and west. The main track crosses the highway at approximately right angles. To the east of the highway the switch track branches off the north side of the main track, runs northwesterly at an angle across the highway, and then proceeds to defendant’s Bemidji railway depot. The two tracks resemble the letter Y, the southerly fork and the lower stem thereof being in direct alignment with each other as part of the main track and the switch track constituting the northerly fork. On the east edge of the concrete highway the switch track is 60 feet north of the main track, but on the westerly edge of the highway the two tracks are 90 feet apart.
There is a slight curve in the highway and a moderate upgrade (1.9 percent grade) as one approaches the crossing from the south, but neither the curve nor the grade in any manner obstructs the view from approaching trains and vehicles. The immediate area is not heavily populated, and the few residences and commercial build
At 11 p. m. on the night of July 5, 1949, the plaintiff, Howard Forde, was riding in the front seat of a car driven by Marlin Johnson. Although they had done some drinking, it does not appear that either was intoxicated. Johnson was driving the plaintiff home. They turned right onto Midway Drive several blocks south of the crossing and approached the crossing. Both insist that as they approached the crossing they made deliberate observations of the Griswold traffic signals and that said signals were at no time in operation and, furthermore, that they did not see any train approaching. They reached the crossing, passed a bus which was stopped at the crossing next to the curb, and entered the railroad right of way at the speed of 15 miles per hour. At that moment a passenger train consisting of seven cars was backing up from the west on the switch track and had just entered the crossing at about 10 miles per hour. The auto crossed the main track, proceeded 60 feet north, and as it crossed the switch track was struck by the rear of the train. Neither Johnson nor Forde saw the train before it hit them. After the impact, the train carried the car
The jury awarded plaintiff $20,000 as damages for the injuries he sustained. Plaintiff appeals from the trial court’s order granting defendant’s motion for judgment notwithstanding the verdict. Issues which require determination relate to the validity of the Bemidji ordinance restricting train speeds to six miles per hour at crossings and to the alleged negligence of the defendant.
It is admitted that defendant in backing its passenger train at a speed of approximately 10 miles per hour violated the ordinance which restricts train speeds to six miles per hour. Is the ordinance as applied to the crossing herein unreasonable and therefore void as defendant contends and as the trial court found? In passing on the question, we are governed by the following three fundamental propositions:
(a) The object of a police-power ordinance restricting speed at a train crossing is the safety of the public which is paramount to all considerations of private interest or benefit.*
(b) A speed ordinance is prima facie valid as a police-power measure reasonably necessary for the protection of life and property, and it is not to be declared void unless and until it clearly and manifestly appears that its restrictive provisions are so patently unnecessary and unreasonable for insuring public safety that, at the time its validity is challenged, it constitutes an abuse or arbitrary exercise of discretion.
(c) Whether with respect to a particular crossing a certain speed ordinance is unreasonable and void is a question for the court — and not for the jury — to be determined in the light of all the circumstances peculiar to the crossing
In applying these principles to the instant case, we are at once confronted with these facts regarding the crossing: (1) It is a busy crossing which is the scene of fairly heavy, but not. dense, traffic as the recipient of intercity travel as well as travel from three trunk highways; (2) the crossing surface, embracing the width of a four-lane concrete highway, is in excellent condition for the efficient operation of automobiles; (3) within a reasonable, if not extensive, safety zone area, there is, except for a few scattered telephone and light poles, an entirely unobstructed view of the crossing for drivers and passengers in approaching vehicles; (4) although the crossing is within the city, the immediately surrounding area is not populous so as to constitute a contributing hazard to travel; and (5) the crossing is equipped with a modern Griswold warning system consisting of reflector crossbuck signs on each side of the crossing which automatically face oncoming traffic when a train approaches. The standards supporting these crossbuck signs are also each equipped with two conspicuous alternately flashing red lights and a ringing bell which, when a train approaches, are automatically set into operation by electricity; and if for any reason the regular electric current fails, the operation of the signals is instantly taken over by batteries. In Engberg v. G. N. Ry. Co. 207 Minn. 194, 290 N. W. 579, 154 A. L. R. 206, where a similar automatic signal system is described with more particularity we held, as we must here, that in view of the efficiency of the warning devices employed the crossing could not be considered other than protected to the utmost extent required by reasonable care.
In view of the nature of the crossing, the surrounding circumstances, and the efficient manner in which it is protected by an
Plaintiff contends, however, that a jury question exists as to whether the automobile crossing signals were operating as he approached the crossing. Plaintiff and the driver of the automobile in which he was riding both said that they deliberately looked at the crossing signal standards as they proceeded toward, and as they entered upon, the crossing and that at no time were any of the red signal lights working. Such negative testimony based upon an attentive and purposeful observation by a credible witness in full possession of his faculties, when the observation is made from a position where he reasonably ought to have heard or seen the signals toward which his faculties of hearing and seeing were consciously directed, though negative in form is affirmative in substance and therefore is an evidentiary factor which may be given probative weight by the fact finder as a basis for a finding that the signals were not operating.
Since the entire evidence must be considered, and since not every conflict of evidence gives birth to a jury question,
In addition to this compelling positive testimony, especially from the wholly disinterested witnesses, we have certain corroborative physical evidence. In the first place a regular inspection made a short time prior to. the accident, as well as one made afterward, disclosed the signals were in good working order. Furthermore, it is admitted that the signals were working immediately after the accident. As already noted, the automatic signal system embodied safeguards against power failure. We have not overlooked the testimony of a local electrician — who had made only a cursory, or merely a sight, examination of the signal lights and who admittedly did not know how the automatic signal mechanism worked — that vibration might temporarily cause a light to- cease burning if the bulb had a loose connection or a broken filament. This testimony is purely speculative and has no probative value whatever. Each side of the crossing was protected by two flashing red lights — visible to traffic from either direction — and it is wholly unlikely that all four bulbs would have loose connections or broken filaments and that all four would temporarily cease burning and then simultaneously resume burning when the collision was over. In the light of the evidence as a whole, and in the face of the overwhelming and convincing tes
It is further asserted that the trial court erred in granting judgment notwithstanding the verdict because a jury issue existed as to whether the defendant was guilty of “wilful and wanton negligence” which has been defined as a failure to exercise ordinary care after discovering another in a position of peril.
Since there is no basis for a finding of negligence, we need not consider the other issues.
The order of the trial court is affirmed.
Affirmed.
Evison v. C. St. P. M. & O. Ry. Co. 45 Minn. 370, 48 N. W. 6, 11 L. R. A. 434.
Evison v. C. St. P. M. & O. Ry. Co. supra.
Evison v. C. St. P. M. & O. Ry. Co. supra.
Lang v. C. & N. W. Ry. Co. 208 Minn. 487, 295 N. W. 57.
See, Annotation in re speed of trains at highway crossings and effect of signal systems in 154 A. L. R. 212, 235.
Cotton v. Willmar & Sioux Falls Ry. Co. 99 Minn. 366, 109 N. W. 835, 8 L.R.A. (N.S.) 643 (a leading case); Perkins v. C. M. & St. P. Ry. Co. 158 Minn. 184, 197 N. W. 758; 10 Minn. L. Rev. 543; 2 Wigmore, Evidence (3 ed.) § 664; 7 Dunnell, Dig. (3 ed.) § 3238; 44 Am. Jur., Railroads,
See authorities cited in preceding footnote.
Engberg v. G. N. Ry. Co. 207 Minn. 194, 290 N. W. 579, 154 A. L. R. 206.
Hanson v. Homeland Ins. Co. 232 Minn. 403, 45 N. W. (2d) 637.
See, Bryant v. N. P. Ry. Co. 221 Minn. 577, 585, 23 N. W. (2d) 174, 179, and cases there cited.
Asklund v. Chicago G. W. R. Co. 176 Minn. 214, 223 N. W. 95; Krtinich v. D. M. & I. R. Ry. Co. 206 Minn. 106, 287 N. W. 870; Ohrmann v. Chicago & N. W. Ry. Co. 223 Minn. 580, 27 N. W. (2d) 806.