193 Wis. 561 | Wis. | 1927
Lead Opinion
The following opinions were filed June 20, 1927:
The first question to be determined is whether by sub. (5), sec. 192.27, Stats., the defendant was under á legal duty to maintain the warning sign at the crossing of the railroad track over the highway in question. It is the contention of the respondent that this statute applies only to common carriers and not to a private corporation such as the defendant, which simply maintains and operates a railroad in connection with its own private business. Sec. 192.27 is found in ch. 192 of the Statutes, which relates to the general regulations and liabilities of railroads. From a perusal of the general provisions of this chapter it is apparent that a great portion of the regulations therein contained applies only to common-carrier railroads. For instance, it prescribes passenger fares, penalizes passengers who do not provide themselves with a ticket before board
Ch. 180, Stats., provides for the organization of domestic' corporations, and provides, among other things, that such corporations may be organized for the purpose of “building, constructing, maintaining and operating, private steam logging railroads for use in carrying on and conducting a logging and lumbering business,” etc. Ch. 190 provides specifically for the organization of corporations “for the purpose of constructing, maintaining and operating a railroad for public use^ in the conveyance of' persons or property,” etc.
Generically speaking, therefore, there is an obvious difference between a common-carrier railroad and a private logging road such as that operated by the defendant.
Prior to the passage of ch. 291, Laws 1923, the present chapters 190, 191, and 192 of our present statutes formed a part of ch. 87 of'the Wisconsin Statutes. By sec. 1861, then a part of ch. 87, it was provided, “The phrase ‘railroad corporation,’ as used in'these statutes, may be taken to embrace any company, association, corporation or person managing, maintaining, operating or in possession of a railroad, whether as owner, contractor, lessee, mortgagee, trustee, assignee or receiver.” It is to be noticed that this definition does not provide that the phrase “railroad corporation” shall be taken to embrace any company, etc. It simply says that the phrase “railroad corporation” may be taken' to embrace any company, etc. Now what was the purpose of this provision in the nature of a definition of the phrase “railroad corporation?” Certainly it did not mean
The major part of the regulations of ch. 87 were appropriate only to common-carrier railroads. As a rule, by the statutory language quite consistently implied throughout the chapter, the regulations were made to apply to “any railroad corporation.” However, a perusal of said ch. 87 discloses regulations quite as appropriate to private corporations operating private railroads as to public railroads. This would seem true with reference to safety regulations: This is also true of sec. 1836, for example, which requires every corporation constructing, owning, or using a railroad to restore every stream of water, watercourse, street, highway, etc., along which such railroad may be constructed to' its former state of usefulness. In this section the duty is not laid on every “railroad corporation,” the general expression used throughout the chapter, but upon every corporation constructing, owning, or using a railroad.
It will at once be seen that this regulation is as appropriate to private railroads as to common carriers. Not only that, but the language of the section plainly expresses the legislative intent to comprehend private as well as public railroads. Sec. 1809, a part of former ch. 87, provides that “any railroad company or corporation operating a railroad in this state” shall not run its trains faster than therein provided. Obviously this regulation relates not only to public railroads but to private corporations operating railroads as well. These provisions are cited to illustrate that all the regulations included in the old ch. 87, most of which are now to be found in chapters 190, 191, andT92, were not intended to apply exclusively to public or common-carrier railroads. It seems obvious, therefore, that the rule of con
This conclusion is further strengthened by consideration of the decision of this court in McKivergan v. Alexander & Edgar L. Co. 124 Wis. 60, 102 N. W. 332, and the legislation following that decision. In that case sec. 1816 of the Statutes, which provided that “Every railroad company operating any railroad which is in whole or in part within this state shall be liable for all damages sustained within the same by any of its employees without contributory negligence on his part,” etc., was construed as applying exclusively to public or common-carrier railroads. In the course of the opinion the court said: “An examination of the provisions of this chapter discloses numerous provisions pointing to the fact that the legislation therein contained referred exclusively to railroad corporations doing the usual business of a public or commercial railroad.” The court not only held that the provisions of sec. 1816 referred exclusively to commercial railroads, but it took occasion to say, obiter, that the provisions of the entire chapter applied exclusively to such railroads. It did not undertake to say what was meant by the rule of construction provided by sec. 1861. However, we apprehend that the rule of construction there laid down is sufficiently clear to obviate the necessity for elucidation. The decision in the McKivergan Case was rendered January 31, 1905. Although the legislature was in session in 1905 it apparently took no notice of the decision. However, said sec. 1816 was revised by ch. 254, Laws of 1907, and the legislature expressly wrote into this section the construction embodied in sec. 1861. Here certainly is a most emphatic legislative declaration that said sec. 1861 (now sec. '192.74) is intended to apply to other than public railroad companies.
It is said that logging railroads do not run their trains as fast, nor operate trains as heavy, as commercial roads. However, logging railroads frequently run through undeveloped country and cross highways where the vision is greatly obscured, and although they do not run as fast or operate as heavy trains, they are quite as much a menace to the traveler upon the highway as the heavier and faster-moving trains of the commercial railroads. We conclude that it was the duty of the defendant to maintain the warning sign required by sub. (5), sec. 192.27, at this highway crossing and that its absence constituted negligence on its part.
The lower court was of the opinion that unless the statute
The jury found that the failure of the defendant to maintain this sign constituted a proximate cause of the accident. The court set aside this finding of the jury and held as a matter of law that such failure did not constitute a proximate cause of the accident. The automobile was proceeding' north' on county trunk T. Just south of the railroad track and just east of the highway were a number of buildings comprising a lumber camp. The driver of the automobile testified positively both upon direct and cross-examination that when she was opposite or in front of the second building from the track she saw a train on the track proceeding in a westerly direction. Measurements conclusively show that the north side of the second building was eighty-one feet six inches from the center of the track. When she saw the train, therefore, she was in the neighborhood of eighty-five feet from the track. The train was proceeding in a westerly direction at the rate of about six miles an hour. She testified that immediately upon seeing the train she threw out the clutch and applied the brakes, but, notwithstanding, she ran into the locomotive upon the crossing. Just before reaching the crossing she turned her car sharply to the left, put the front wheels into a ditch, but did not avoid colliding with the locomotive. She does not pre
The evident purpose of the warning sign is to apprise travelers upon the highway, when they are at a distance of one hundred feet, of the presence of the railroad crossing. The most that can be said is that if the sign had been present and she had seen it she would have been apprised of the presence of the railroad track when she was fifteen feet further away. If she had seen the train when she was one hundred feet away, then it is apparent that the absence of the sign could not have been a proximate cause of the accident, because she would have had all the knowledge which the sign was designed to convey. The question is whether, under the circumstances, the fact that she did not see the train until she was within eighty-five feet of the track makes the question of proximate cause one for the jury. According to her own testimony she was approaching this crossing at a speed of twenty-eight miles an hour. The highway approaches the railroad from the south on a slight up-grade. She testified that before entering upon this up-grade her speedometer indicated a speed of twenty-eight miles per hour and that her speed slackened before the time of the accident. Just how much it slackened does not appear. The testimony indicates, however, that at the time she saw the train she was not traveling at more than twenty-eight miles per hour, and probably somewhat less. It is matter of common knowledge that a car traveling at this rate of speed can be stopped at a much less distance than eighty-five feet when the brakes are in proper order.
Doubtless these are the considerations which prompted the court to find the driver of the automobile guilty of negligence as a matter of law, which finding by the way is not challenged upon this appeal. Unless knowledge of the presence of the railroad track when she was one hundred feet
By the Court. — Judgment affirmed.
Dissenting Opinion
{dissenting). I cannot agree with the statutory construction reached by the majority. I think the trial court gave the proper construction and followed the prior decisions on the precise question.
A motion for a rehearing was denied, with $25 costs, on October 11, 1927.
