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

• Decision Date: 11 October 1955
• Citation: 72 N.W.2d 336,270 Wis. 601
• Parties: The BORDEN CO., a corporation, Respondent, v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RY. CO., a foreign corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 336

72 N.W.2d 336

270 Wis. 601

The BORDEN CO., a corporation, Respondent, v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RY. CO., a foreign corporation, Appellant.

Supreme Court of Wisconsin.

Oct. 11, 1955.

Reginald W. Nelson, Milwaukee, for appellant.

Pors & Pors, Marshfield, for respondent

MARTIN, Justice.

The Borden Company truck was a private motor carrier, as defined in sec. 194.01(14), Stats., and the first issue raised on this appeal is the application of sec. 85.92(2), Stats., which provides, so far as material:

'Any person operating any motor vehicle described in ss. * * * 194.01 or a vehicle carrying inflammable liquids in quantities over 100 gallons who shall drive any such vehicle on or across a grade crossing with the main line tracks of any railroad or interurban railway company, whether or not such crossing is protected by crossing protective devices or by flagmen, without coming to a full stop at a distance from such tracks of at least 20 and not more than 40 feet, shall be fined not less than $10 nor more than $100, or imprisoned not less than 10 nor more than 90 days, or both. * * * The school board or public service commission may refuse to accept the bond of any person who has been convicted of a violation of the provisions of this section, and may cancel any such bond theretofore issued if it believes that the safety of the public requires such action.'

The pertinent portions of sec. 194.01, Stats., provide:

'(1) 'Motor vehicle' means any automobile, truck, trailer, semitrailer, tractor, motor bus or any self-propelled or motor driven vehicle, except a motor driven cycle or a vehicle operated on rails, or trackless trolley car.

* * *

* * *

'(5) 'Common motor carrier' means any person who holds himself out to the public as willing to undertake for hire to transport by motor vehicle between fixed termini or over a regular route upon the public highways, passengers or property other than live stock, fluid milk or other farm products or farm supplies transported to or from farms. The transportation of passengers in taxicab service shall not be construed as being that of a common motor carrier.

'(11) 'Contract motor carrier' means any person engaged in the transportation by motor vehicle of property for hire and not included in the term 'common motor carrier of property.'

'(14) 'Private motor carrier' means any person except a common or contract motor carrier engaged in the transportation of property by motor vehicle other than an automobile or two-wheeled trailer used therewith, upon the public highways.'

These statutes were considered in Glendenning Motorways v. Green Bay & W. R. Co., 1949, 256 Wis. 69, 39 N.W.2d 694, 696, a case which involved a common motor carrier struck by a train under circumstances similar to those in this case. The driver of the truck had not stopped and plaintiff contended that he was not required to since sec. 85.92(2), Stats. applied only to busses. It was held that it did apply because the vehicle was 'one of those described by sec. 194.01, Stats., and it was the driver's duty to come to the full stop contemplated by sec. 85.92.'

In Lang v. Chicago & N. W. R. Co., 1949, 256 Wis. 131, 40 N.W.2d 548, the statute was applied to a truck which was licensed as a contract motor carrier. The judgment in that case was reversed and a new trial ordered because of certain erroneous instructions with respect to the defendant's negligence; on the second trial it appeared from the evidence that at the time of the accident the truck was not being operated as a contract carrier but by, and for the personal use and benefit of, the licensee's father. On the second appeal, Lang v. Chicago & N. W. R. Co., 1951, 258 Wis. 610, 614, 46 N.W.2d 844, 846, this court said:

'Obviously, sec. 85.92, Stats. was enacted as a safety measure, intended for the protection of persons and property carried by licensed carriers. Defendant contends that the statute applies to every operation of the truck, whether it is being operated under its license as a carrier or not. It is true that the language is general and, if literally construed, would include every operation. We may not, however, construe it according to its strict letter if it is clear that we must do otherwise to present the intent of the legislature. '* * * language quite plain and persuasive when viewed merely in the light of its immediate context must yield in meaning to the general scope and purpose of the act of which it forms a part, if such scope and purpose is plain and unambiguous, and if the language used is susceptible of a meaning consonant with such general scope and purpose.' Estate of Stephenson, 171 Wis. 452, 177 N.W. 579, 580.

'It is only when a vehicle is being operated in pursuit of a licensed purpose that the provisions of sec. 85.92, Stats. apply.

'We should also observe that violation of the statute carries a penalty, and that in cases of uncertainty a penal statute should be read so as to minimize rather than to extend its penal character; it must be construed to exclude acts not clearly within the legislative purpose. State ex rel. Shinners v. Grossman, 213 Wis. 135, 250 N.W. 832.'

In support of its contention that a private motor carrier is included among the vehicles to which the statute applies, appellant cites Riley v. Chicago & N. W. R. Co., 1949, 255 Wis. 172, 38 N.W.2d 522, and DeRousseau v. Chicago, St. P., M. & O. R. Co., 1949, 256 Wis. 19, 39 N.W.2d 764, but they are not in point. In both cases warning signals were operating at the time and any vehicle was required to stop.

It is appellant's position that the holding of the second Lang Case does not govern here because the Borden truck was being used in pursuit of the purpose for which its permit had been issued.

Such a view ignores the fundamental purpose of the statute, which this...