Dahlquist v. Minneapolis & St. L. Ry. Co.
| Decision Date | 03 March 1950 |
| Docket Number | No. 35023,35023 |
| Citation | 41 N.W.2d 587,230 Minn. 203 |
| Court | Minnesota Supreme Court |
| Parties | DAHLQUIST v. MINNEAPOLIS & ST. L. RY. CO. |
Syllabus by the Court.
In an action for injuries to the driver of a vehicle which was struck by defendant's locomotive at a street intersection, the evidence compels a conclusion that plaintiff was guilty of contributory negligence.
Brenner & Bouchard, Minneapolis, for appellant.
C. W. Wright, John C. DeMar, Richard Musenbrock, William J. Powell, Minneapolis, for respondent.
In the preceding opinion, we held that defendant was not entitled to judgment notwithstanding the verdict because of failure to move for a directed verdict at the close of all the testimony. M.S.A. § 605.06. Dahlquist v. Minneapolis & St. L. Ry. Co., Minn., 41 N.W.2d 586. Since that decision was filed, the parties have presented a stipulation that the case be remanded to the trial court for correction of the settled case according to the facts. That was done, and the settled case returned to this court, showing that a motion to direct a verdict for defendant was, in fact, made at the close of all the testimony. Accordingly, we now consider the question whether defendant is entitled to judgment notwithstanding the verdict.
The only question presented for decision is whether the facts indicate that plaintiff was guilty of contributory negligence as a matter of law.
The accident giving rise to this controversy occurred on the afternoon of October 24, 1947, in the city of Hopkins on the second of defendant's three tracks, where they intersect Washington avenue. That avenue runs in a general north-south direction at the point where it crosses the railroad, and the tracks run east and west, although defendant's tracks swing to the north shortly west of the crossing. Defendant owns and operates three sets of tracks on the north, and the Milwaukee railroad owns three on the south. An average of 13,000 motor vehicles used the crossing every week, notwithstanding which no other warning than the sawbuck sign had been erected by the railroad or ordered by the railroad and warehouse commission.
Plaintiff was 65 years of age and had lived near Hopkins for 25 years. On the day of the accident he was driving south on Washington avenue. When he came to the crossing, he stopped his truck about ten feet north of the sawbuck stop sign by the side of the highway. This sign was about 40 feet from the place of the accident. He testified that he waited for four of five seconds, looked in both directions, and listened for the approach of trains. There was a Milwaukee engine standing on one of that company's tracks near the south side of the crossing. At the trial he did not recall that he saw that engine. Not hearing any bell or whistle and not seeing any train, except possibly the Milwaukee engine, he started toward the tracks in low gear. According to plaintiff's testimony, he looked again when he was 40 feet from the second track and when he was 30 feet away from the place of collision. He looked again when he was almost to the first track, but at no time did he see defendant's train, which was approaching from the west. Plaintiff testified that he was moving between five and ten miles per hour, and he asserted that he could have stopped in ten feet. When he reached the second track he was struck by defendant's train.
The first and second tracks were about 14 feet apart, middle to middle. Defendant's locomotive was traveling, at the most, between 15 and 20 miles per hour and, in the light of the place where it stopped, probably about ten miles per hour. It was raining 'medium,' but not enough to affect plaintiff's vision.
Plaintiff's main contention is that his view of the tracks was obstructed by defendant's tool shed, which stood on the west side of Washington avenue close to the tracks. Its east side, which is 16 feet 9 inches wide, is 47 feet 8 inches from the west edge of Washington avenue. Its south side, which is 33 feet long, is 13 feet 10 inches from defendant's first rail. In addition to this obstruction, plaintiff testified that there were several automobiles parked by the east side of the tool shed, which further obscured his view. He testified that these cars extended out about 20 feet toward Washington avenue.
There was evidence that the engineer on the locomotive neither blew the whistle nor rang the bell. In the light of the fact that the only warning erected at the crossing was the sawbuck sign, the evidence of defendant's negligence is abundant to sustain a verdict. There is some evidence that plaintiff, immediately after the accident, said that the train standing on the Milwaukee tracks had 'fooled' him. However, at the trial, plaintiff denied seeing a train on the Milwaukee tracks. It is on the basis of these facts that we must decide whether plaintiff was guilty of contributory negligence as a matter of law.
The principles of law applicable to the instant case are settled. If the driver of the automobile involved in a collision with a train at a railroad crossing has an adequate opportunity under the surrounding circumstances to know of and see the approaching train in time to avoid the collision, he is guilty of contributory negligence as a matter of law. Carlson v. Chicago & N.W. Ry. Co., 96 Minn. 504, 105 N.W. 555, 4 L.R.A., N.S., 349, 113 Am.St.Rep....
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