Duluth, W. & Pac. Ry. Co. v. Zuck

• Decision Date: 14 April 1941
• Docket Number: No. 11874.,11874.
• Citation: 119 F.2d 74
• Parties: DULUTH, W. & PAC. RY. CO. v. ZUCK.
• Court: U.S. Court of Appeals — Eighth Circuit

119 F.2d 74 (1941)

DULUTH, W. & PAC. RY. CO. v. ZUCK.

No. 11874.

Circuit Court of Appeals, Eighth Circuit.

April 14, 1941.

William O. Bissonett, of Duluth, Minn. (Gillette, Nye, Harries & Montague, of Duluth, Minn., on the brief), for appellant.

I. K. Lewis, of Duluth, Minn. (C. G. Lindquist and Lewis Grannis & Underhill, all of Duluth, Minn., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This was an action brought by appellee, Lula B. Zuck, plaintiff below, against appellant, Duluth, Winnipeg & Pacific Railway Company, to recover damages for personal injuries received by her as the result of a collision between an automobile in which she was riding and a moving freight train of the Duluth, Winnipeg & Pacific Railway Company. It will be convenient to refer to the parties as they appeared below.

Plaintiff's three children were in the automobile with her at the time of the accident. Her daughter Lorene was driving and her daughter Lillian was sitting in the front seat with Lorene, while plaintiff and her son William sat in the back seat. Plaintiff's home was in Duluth but she was a trained nurse and had been nursing in a home at Hibbing for a week previous to the accident. Her children went to Hibbing to take her home to Duluth so that she might see a sister who had come from Oklahoma to visit her. The children arrived at Hibbing about 11 o'clock p. m., and with the plaintiff left for Duluth about midnight on May 15, 1937. The automobile at the time of the accident was being driven in an easterly direction on a paved highway, County Highway No. 61, which is intersected by the defendant's railway at right angles. Just before the automobile came to this intersection, a freight train consisting of fifty-one cars was passing in a northerly direction toward Virginia, Minnesota. As the automobile approached the intersection from the west, none of the surviving occupants heard any whistle or bell of the engine, nor did they hear the noise of the train as it was passing over the intersection. The automobile collided with the fifty-first car, a refrigerator car just ahead of the way car, killing the daughter Lillian and injuring the plaintiff and her daughter Lorene. The first realization the occupants of the automobile had of the impending danger was when Lillian exclaimed, "Oh, Lorene, there is a freight train." At that time the automobile was within a few feet of the moving train, and it was impossible to stop the automobile in time to avoid the collision although it was moving at a rate of only 10 to 15 miles an hour. As the automobile approached the railroad crossing, the locality was enveloped in a dense fog, making it impossible for the occupants of the car to see the railroad crossing sign or the moving train, or any object, farther than 10 feet ahead of their car. The driver of the car, the moment she observed the passing freight train, put on the brakes but was unable to stop before striking the freight train.

It was the contention of the plaintiff that the railroad crossing at nighttime was peculiarly hazardous and unusually dangerous by reason of the frequency with which dense fogs accumulated in the vicinity of the crossing, particularly during the spring and fall months, and that the defendant was negligent in having failed to install and maintain at this crossing different and additional signals which would more adequately have warned plaintiff and the traveling public of the existence of the crossing. There was testimony which we shall hereafter refer to in more detail, with reference to the frequency of dense fogs in the locality of this crossing.

The defendant, contending that it was guilty of no actionable negligence because it had installed and was maintaining the crossing signals approved by the Railroad and Warehouse Commission of the State of Minnesota, and that the crossing was not unusually hazardous, and that contributory negligence of all the occupants of the plaintiff's car had been established as a matter of law, moved for a directed verdict at the close of all the testimony. The court denied this motion and submitted the case to the jury upon instructions to which no exceptions are here urged. The jury returned a verdict in favor of the plaintiff, assessing her damages at $2,000. Thereafter defendant moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial, which motion was denied and this appeal followed.

The determining question is whether the court erred in denying defendant's motion for a directed verdict. The accident having occurred in Minnesota, the rights, duties and liabilities of the parties must be determined under the laws of that state. A railroad company is, of course, not an insurer of the safety of those who use the public crossings. It is, however, bound to exercise ordinary care, dependent upon the situation and surroundings of the crossing, and commensurate with the danger involved. The purpose of the crossing signs is to give warning of the presence of a railroad crossing. The defendant here had complied with the statutory requirements with reference to the installation and maintenance of crossing signs, and under ordinary conditions this would doubtless measure its responsibility. But the statutory requirements "are the minimum duty of the railway company." Ordinary care may require more, and unusual facts and circumstances may render a crossing an exceptional or dangerous one requiring precautions in addition to those prescribed by statute or order of the Railroad and Warehouse Commission. Licha v. N. P. Ry. Co., 201 Minn. 427, 276 N.W. 813; Crosby v. G. N. Ry. Co., 187...