Ausen v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 25 January 1935
• Docket Number: No. 29915.,29915.
• Citation: 258 N.W. 511,193 Minn. 316
• Parties: AUSEN v. MINNEAPOLIS, St. P. & S. S. M. RY. CO. et al.
• Court: Minnesota Supreme Court

258 N.W. 511

193 Minn. 316

AUSEN v. MINNEAPOLIS, St. P. & S. S. M. RY. CO. et al.

No. 29915.

Supreme Court of Minnesota.

January 25, 1935.

Appeal from District Court, Hennepin County; Frank E. Reed, Judge.

Action by Stanley Ausen against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Daniel Carmichiel and K. A. Campbell, both of Minneapolis, for appellant.

Grant L. Martin, of Minneapolis, for respondent Minneapolis, N. & S. Ry John E. Palmer and A. O. Bjorklund, both of Minneapolis, for respondent Minneapolis, St. P. & S. S. M. Ry. Co.

HOLT, Justice.

Plaintiff appeals from the judgment entered on a verdict directed in favor of defendants.

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 line 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 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 2½ 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.

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 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. Great Northern Ry. Co., 187 Minn. 263, 245 N. W. 31, 32, when applied to the evidence herein control and, we think, sustain the court below in directing a verdict for defendants. There it was held that it was not negligence in itself to allow a train to stand or move on a highway crossing; that the statutory signals for trains approaching a highway crossing are solely for the benefit of travelers on the highway to warn them of an approaching train, and are not for the purpose of preventing automobile drivers from running into the side of a train already on the crossing. It was also considered that in that case the evidence did not tend to establish the crossing to be so exceptionally dangerous as to require other precautions for the protection of travelers on the highway than those required by statute. Of the many authorities cited in the Crosby Case, the following are particularly in point under the evidence herein: St. Louis-San Francisco Ry. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A. L. R. 1110; Philadelphia & Reading R. Co. v. Dillon, 1 W. W. Harr. (31 Del.) 247, 114 A. 62, 15 A. L. R. 894; McGlauflin v. Boston & M. R. R., 230 Mass. 431, 119 N. E. 955, L. R. A. 1918E, 790; Gulf, Mobile & Northern Ry. Co. v. Holifield, 152 Miss. 674, 120 So. 750; Gage v. Boston & M. R. R., 77 N. H. 289, 90 A. 855, L. R. A. 1915A, 367; Nadasky v. Public Service R. Co., 97 N. J. Law, 400, 117 A. 478; Yardley v. Rutland R. Co., 103 Vt. 182, 153 A. 195; Hendley v. Chicago & Northwestern R. Co., 198 Wis. 569, 225 N. W. 205; Orton v. Pennsylvania Ry. Co. (C. C. A.) 7 F.(2d) 36. Each case involved injury to a person riding with the owner and driver of an automobile which ran into a standing or slowly moving train at a grade crossing on the highway, in the nighttime; the decision in...