Bryant v. N. Pac. Ry. Co., 34152.
| Court | Supreme Court of Minnesota (US) |
| Writing for the Court | THOMAS GALLAGHER |
| Citation | 23 N.W.2d 174,221 Minn. 577 |
| Parties | BRYANT v. NORTHERN PAC. RY. CO. |
| Docket Number | No. 34152.,34152. |
| Decision Date | 07 June 1946 |
BRYANT
v.
NORTHERN PAC. RY. CO.
No. 34152.
Supreme Court of Minnesota.
May 3, 1946.
Rehearing Denied June 7, 1946.
Action by Oliver R. Bryant against Northern Pacific Railway Company for damages to an automobile struck by defendant's train while automobile was stalled on defendant's track at a street crossing. The jury returned a verdict for plaintiff for $500. From an order denying defendant's motion for judgment notwithstanding the verdict or a new trial, the defendant appeals.
Reversed.
[23 N.W.2d 175]
Syllabus by the Court.
1. Where automobile, stalled on railroad crossing, is struck and damaged by train after driver thereof has stopped it some 70 feet back from the nearest track and where he would have passed over crossing safely except for stopping of motor, which stalled car on tracks, Held that failure of driver again to stop within 50 feet of nearest track as required by Minn.St.1941, s 169.27 (Mason St.1940 Supp. s 2720-212), did not constitute negligence As a matter of law, in view of s 169.96 (s 2720-291), which provides that in civil actions violation of s 169.27 (s 2720-212) shall be prima facie evidence of negligence only.
2. Where at crossing within corporate limits of city view of trains approaching same was partially obstructed by trees and by railroad ties piled on right of way by railroad company, where crossing was protected only by ordinary stop signs, and where other factors indicated that it was more hazardous than ordinary crossings, court properly submitted to jury question whether train's speed of 50 miles per hour while approaching said crossing constituted negligence proximately causing collision, where slower speed might have permitted train to stop in time to avoid collision.
3. Where defendant made timely request for instructions applicable to question of its ‘wilful and wanton negligence,‘ and where subsequently court submitted this issue to jury but failed to give requested instructions or otherwise to cover the principles included therein in charge to jury, and where jury's verdict for plaintiff may have been based on its determination of this issue, Held that failure to give requested instruction constituted reversible error warranting a new trial.
4. Railroad company must exercise greater precaution at crossings in a city than at an ordinary highway crossing in open country. It is bound to be on the lookout for men, women, and children at public crossings and to use due care to avoid injuring property thereon.
Appeal from District Court, Anoka County; Leonard Keyes, Judge.
L. B. daPonte and D. R. Frost, both of St. Paul, for appellant.
Kelly & Mangan, of Minneapolis, for respondent.
THOMAS GALLAGHER, Justice.
Action for damages caused to plaintiff's automobile when struck by defendant's train while it was stalled on the latter's track at a street crossing in Anoka on October 10, 1944. The jury returned a verdict of $500 for plaintiff. From an order denying defendant's motion for judgment
[23 N.W.2d 176]
notwithstanding the verdict or a new trial, this appeal is taken.
On appeal, defendant contends (1) that the evidence fails to establish negligence chargeable to defendant; (2) that the court erred in not holding plaintiff guilty of contributory negligence as a matter of law; and (3) that the court erred in the admission and exclusion of certain evidence and in giving and refusing certain instructions to the jury, as hereinafter set forth.
The facts are as follows: On October 10, 1944, at 7:25 a.m., Mrs. Oliver R. Bryant, wife of plaintiff, was driving his automobile from the Anoka State Hospital, on Fourth avenue of said city, in a southerly direction. Fourth avenue runs north and south and intersects the double tracks of defendant's railroad, which run east and west.
The railroad tracks at this crossing are several feet above the highway grade. The crossing is not marked with flasher signals, but is protected by ordinary railroad ‘Stop’ signs. The evidence does not disclose to what extent the highway is traveled. An affidavit of Mrs. Bryant, submitted by defendant, set forth that ‘the approach to the railroad right of way is about seven feet higher than the street level on both sides'; that ‘a thick cluster of trees to the right * * * makes it impossible to see an approaching train * * * until after the climb upgrade has commenced’; that at the time of the accident there was ‘a huge pile of railroad ties between the tracks about 500 feet from the crossing on the north, which further obstructs any view’; and that ‘the track curves in such a way as to also prevent seeing an approaching train.’
Before driving onto the tracks, Mrs. Bryant stopped the car about 70 feet north of the first rail. At this point she looked in both directions for trains, and, seeing none, started the automobile in low gear, with the choke out, up a slight grade and onto the tracks. When the front of her car was about two feet over the north rail of the southerly track, she accidentally killed the motor, stopping the car at that point. She had not again looked for approaching trains until her car thus stopped. She estimated her speed in approaching the tracks after the first stop at three or four miles per hour. As she tried to start the car, she heard a train whistle and then saw a train approaching from the west about 1,387 feet away. She immediately got out of the car to see if it was on the tracks, and, having ascertained that it was, again got into it and attempted to start it. Unable to do so, she got out and attempted to push it off the tracks. Unable to do this, she ran toward the train trying to signal it with her arms.
The train consisted of 19 empty Pullmans, one locomotive, and a caboose. It was used for the transportation of troops. It was empty at the time. It is conceded that it was traveling at the rate of about 50 miles per hour in an easterly direction toward Anoka. The engineer testified that he first observed the car stalled on the track when the train swung onto a bridge over the Rum River, the west end of which bridge is about 1,080 feet from the center of the highway. The fireman testified that he first saw the car about the same time. He admitted that if he had looked toward the crossing when he was at what is designated as a ‘whistling post,‘ some 1,287 feet from the crossing, he would have seen the stalled car on the tracks.
The engineer testified that upon observing the car he immediately applied the emergency brake and sanders and shut off the throttle to bring the train to a stop. The train struck the car at the crossing, throwing it into a small ditch between the tracks and causing the damages for which this action was brought. After the collision, the train came to a stop, but only after the engine and eight Pullman cars had passed beyond Fourth avenue. The engine is 80 feet in length and each Pullman car 72 feet in length, indicating that approximately 656 feet of the train had passed over the crossing before it came to a stop, and that a distance of approximately 1,736 feet was traversed by the train from the time it came onto the bridge until it stopped, as described. A witness for plaintiff testified that the train did not perceptibly slow down prior to the time it came in contact with the automobile.
Testimony was presented by defendant to the effect that a train of the size and
[23 N.W.2d 177]
dimensions here involved could not have been brought to a stop in less than 1,200 to 1,400 feet; that the braking equipment thereon was of the best possible type; that it was in good working order; and that the application of the emergency brakes here, in what is known as ‘dynamiting the train,‘ was the quickest and most effective way of bringing the train to a stop. There is no dispute that the engine whistle was blown and that the engine bell was ringing as the train approached the crossing.
In his complaint plaintiff alleged that defendant was negligent, as follows: ‘That notwithstanding the fact that plaintiff's said automobile was stalled upon said track, the defendant so negligently managed, ran and operated said train, at a high, dangerous and reckless rate of speed, without having said train under proper control, even though the defendant's engineer knew or should have known that said automobile was on said intersection, that said train ran into and against plaintiff's automobile, breaking, bending, twisting and damaging same.’
In submitting the case to the jury on the issue of plaintiff's contributory negligence, the court gave the following instructions, which defendant contends were erroneous:
‘* * * It was the duty of Mrs. Bryant in the operation of the plaintiff's automobile to exercise reasonable care, to have the same under proper control at all times. A railway grade crossing is a place of danger and the track itself a warning. Persons approaching or upon such a grade crossing are charged at all times with the knowledge of the probability of trains approaching such crossing, and it was the duty of Mrs. Bryant in the exercise of ordinary care to at all times manage the automobile in the light of all of the conditions surrounding the particular locality and place where she was operating the automobile.
‘If you find that in the operation of the plaintiff's automobile the plaintiff's wife failed to exercise such care as an ordinary prudent person usually exercises under the same or similar conditions, you will find the plaintiff guilty of negligence, and if you further find that such negligence contributed to cause the plaintiff's damage in some degree, that is, contributed wholly or partially to cause the plaintiff's damage, then the plaintiff cannot recover, * * *.’
On the issue of defendant's negligence, the court gave the following instructions, which defendant contends likewise were erroneous:
‘* * * High speed may not, in itself, constitute actionable negligence but may be such when considered in connection with conditions...
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