Glendenning Motorways v. Green Bay & W. R. Co.

• Decision Date: 15 November 1949
• Citation: 256 Wis. 69,39 N.W.2d 694
• Court: Wisconsin Supreme Court
• Parties: GLENDENNING MOTORWAYS, Inc. v. GREEN BAY & W. R. CO.

Page 694

39 N.W.2d 694

256 Wis. 69

GLENDENNING MOTORWAYS, Inc. v. GREEN BAY & W. R. CO.

Supreme Court of Wisconsin.

Nov. 15, 1949.

Fisher, Reinholdt & Peickert, Robert A. Fisher, Stevens Point, for appellant.

Stephens, Cannon, Bieberstein & Cooper, Frank M. Coyne, Madison, for respondent.

MARTIN, Justice.

Defendant asserts that under the provisions of sec. 85.92, Stats., it was the duty of plaintiff's truck driver to stop at the railroad crossing.

Sec. 85.92, Stats., provides: 'Any person operating any motor vehicle described in sections 40.34 and 194.01 who shall operate, run or drive any such vehicle on or across a grade crossing with the main line tracks of any railroad or interuban railway company, unless such crossing is protected by crossing gates or by flagmen, without coming to a full stop at a distance from such tracks of at least twenty and not more than forty feet, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than ten dollars nor more than one hundred dollars for each offense, or be imprisoned in the county jail for not less than ten nor more than ninety days, or be punished by both such fine and imprisonment, but the provisions of this section shall not apply to crossings with interurban railroad tracks which are laid on or along public streets within the corporate limits of any incorporated city or village. 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.'

Plaintiff claims that the statute was not applicable for three reasons: (1) it was intended to apply only to busses; (2) the crossing in question had automatic blinker signals which it contends are the equivalent of flagmen; and (3) the accident did not happen on the main line track but involved a switch engine on a side track.

The trial court disregarded the first two arguments but agreed with plaintiff that the statute was not applicable because the accident happened on a side track.

We will discuss this section in the order of plaintiff's claims.

(1) Examining the portion of the statute 'Any person operating any motor vehicle described in sections 40.34 and 194.01', sec. 40.34, Stats., refers generally to the transportation of school children, and sec. 194.01 describes motor vehicles as follows: "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.'

Ch. 194, Stats., is the motor vehicle transportation act and confers upon the motor vehicle department and the public service commission the power, authority, and duty to supervise and regulate common motor carriers of passengers and property, contract motor carriers, and private motor carriers for which a certificate, license, or motor vehicle permit must be issued.

Plaintiff's argument that every private automobile would have to stop is not material here. However, its claim is without merit for an automobile would not be included under ch. 194, Stats., unless it were used for hire in the transportation of passengers or property.

In the present case plaintiff's 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.

See Zenner v. Chicago, St. P., M. & O. R. Co., 1935, 219 Wis. 124, 130, 262 N.W. 581; Keegan v. Chicago, M., St. P. & P. R. Co., 1947, 251 Wis. 7, 10, 27 N.W.2d 739; and Garlock v. Chicago, M., St. P. & P. R. Co., 1948, 252 Wis. 269, 275, 31 N.W.2d 582, wherein it was held that it was the duty of the motor carrier to stop.

(2) In each of the cases cited above, it was held that it was the duty of the vehicle to stop, but in all three cases the facts reveal that there were neither flagmen, gates, nor electrical devices at the crossing.

Sec. 192.29, Stats., which relates to train speed at street and highway crossings provides in subsec. (1) that speed shall not exceed fifteen miles an hour while approaching and within twenty rods of any public traveled grade crossing in any city or village. Subsec. (2) provides that when gates or flagmen are maintained, trains or locomotives shall not exceed thirty miles an hour, and where an electric alarm bell or signal is maintained, the speed shall not exceed twenty miles an hour. Subsec. (3) provides that the engine bell need not be rung in cities or villages where gates are operated or a flagman is stationed, but an electric alarm bell or signal is not excluded. The legislature clearly distinguished between gates and flagmen, on the one hand, and electric signals, on the other.

It is true that electric alarm bells or signals, gates, and flagmen are all to warn traffic that a train or engine is going to cross the public traveled grade crossing, but the gates and flagmen are a more adequate warning in that they also constitute a physical obstruction.

If the legislature had intended to include automatic electric signals in the exception contained in sec. 85.92, Stats., it would have specifically set forth such signals in the exception.

Appellant has cited Jorgenson v. Chicago & N. W. R. Co., 1913, 153 Wis. 108, 140 N.W. 1088; Clark v. Chicago, M., St. P. & P. R. Co., 1934, 214 Wis. 295, 252 N.W. 685; and McCaffrey v. Minneapolis, St. P. & S. S. M. R. Co., 1936, 222 Wis. 311, 267 N.W. 326, 268 N.W. 872. These cases are distinguished for the court was not confronted with the problem of whether or not a common carrier was required to stop before proceeding over the crossing.

(3) The statute provides any driver 'who shall operate, run or drive any such vehicle on or across a grade crossing with the main line tracks of any railroad * * * without coming to a full...