Jorgenson v. Chi. & N. W. Ry. Co.

• Decision Date: 08 April 1913
• Citation: 153 Wis. 108,140 N.W. 1088
• Court: Wisconsin Supreme Court
• Parties: JORGENSON v. CHICAGO & N. W. RY. CO.

153 Wis. 108

140 N.W. 1088

JORGENSON

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

April 8, 1913.

Appeal from Municipal Court, Racine County; William Smieding, Jr., Judge.

Action by Morris Jorgenson, as administrator, etc., against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Barnes and Marshall, JJ., dissenting.

The plaintiff's intestate was killed by a train while crossing the defendant's tracks at the State street crossing in the city of Racine. The evidence showed the following state of facts: State street runs east and west, and crosses the tracks of the defendant at grade, and practically at a right angle, just north of the defendant's passenger station in Racine. It is a very busy street, and the crossing is furnished with gates operated from a tower. A bell is also located in the tower, which is continuously sounded by the tower man when the gates are down. There is a double track at this point; the east track being used by south-bound trains and the west track by north-bound trains. At 11 o'clock of the night before the accident the east gates refused to operate because of the freezing up of some of the air pipes or conduits by which they were controlled from the tower. This condition remained until after the accident, and the east gates remained standing up during the whole time. At about 8:30 a. m. of March 8, 1912, the deceased, a carpenter by occupation, familiar with the crossing, approached the crossing from the west, walking on the north sidewalk of the street. The tower bell was ringing as he approached; the west gates, which covered the roadway of the street, were down; there is testimony tending to show that the north arm of the west gates, which normally extended horizontally across the north sidewalk of the street, stood at an angle of 45 degrees, but this is disputed by the defendant's witnessesand also claimed to be mechanically impossible. As the deceased came to the gates, switching was being done on the west track; an engine headed north, with its bell ringing, was slowly pushing a string of 10 or 11 freight cars northward. The deceased passed under the north gate, and, as the switch engine passed northward, he stepped out into the street and around the south end of the tender and into the eight-foot space between the north-bound and south-bound tracks; the testimony tends to show that considerable smoke and steam escaped from the switch engine and obscured the vision immediately north and northeast of the deceased at this time; he proceeded eastward without stopping, and just as he was about to clear the east rail of the east, or south-bound, track a passenger train from the north, due at about that time, struck him, causing instant death.

The following special verdict was returned by the jury:

“Ques. 1. Was the defendant guilty of any want of ordinary care in failing to properly maintain and properly operate the gates, or provide some equivalent safeguard, at the crossing in question, at the time said deceased was struck by def.'s engine? Ans. Yes.

Ques. 2. If you answer question number 1 ‘Yes,’ then was such want of ordinary care the proximate cause of the death of said deceased? Ans. Yes.

Ques. 3. Did the engine and train which struck and killed deceased approach and cross State street at a rate of speed exceeding twelve miles an hour? Ans. Yes.

Ques. 4. Was the defendant guilty of a want of ordinary care in running said train at said rate of speed, at that time and place, under the circumstances? Ans. Yes.

Ques. 5. If you answer question number 4 ‘Yes,’ then was such want of ordinary care the proximate cause of the death of said deceased? Ans. Yes.

Ques. 6. Was deceased's view of the approaching south-bound train obstructed by smoke and steam from the switch engine as he passed towards the east from behind said engine? Ans. Yes.

Ques. 7. Was the deceased guilty of gross negligence in attempting to cross said tracks, under the circumstances? Ans. No.

Ques. 8. What sum of money will compensate the person or persons entitled thereto for the death of Nels C. Jorgenson? Ans. $3,500.”

From judgment for the plaintiff upon this verdict, the defendant appeals.

Edward M. Smart, of Milwaukee, for appellant.

Wallace Ingalls and John B. Simmons, both of Racine, for respondent.

WINSLOW, C. J. (after stating the facts as above).

By section 1809 of the Statutes the Legislature has endeavored by various imperative requirements to eliminate, as far as possible, the dangers of the grade crossing.

Subdivision 1 of this section prohibits the running of a train or locomotive in any incorporated city or village faster than 12 miles per hour while approaching and within 20 rods of any grade street crossing. Subdivision 2 provides that whenever a railroad company “shall erect, maintain and operate” gates, or “maintain a flagman” at any such grade crossing, a train or locomotive may be run at a speed not exceeding 30 miles an hour, and if it shall maintain “an efficient electric bell or signal properly installed and kept in good working order,” at a speed not exceeding 20 miles an hour, while approaching and within 20 rods of and while crossing such grade crossing. Subdivision 3 provides for the ringing of the engine bell continuously while approaching such crossings, except where gates or flagmen are maintained. Subdivision 4 provides for the blowing of the whistle and the continuous ringing of the engine bell as the engine approaches a country grade crossing. Subdivision 5 requires the erection and maintenance of signs at all highway crossings; and subdivision 6 provides that in any action brought to recover for personal injuries or death, if it appears that such injuries or death was caused by the “omission” of a railroad company to comply with any of the requirements of the section, the fact that the person injured or killed was guilty of any want of ordinary care contributing to the injury or death shall not bar a recovery; and no want of care on the part of the person injured or killed, “less than gross negligence,” shall bar such recovery.

In the present case it was found upon sufficient evidence that the train which struck and killed the deceased approached and crossed State street at a speed exceeding 12 miles an hour; hence, unless the defendant company maintained either gates, a flagman, or an electric bell or signal at the crossing, there was clearly a violation of the statute by the railroad company in this instance, which, if it proximately caused the death of Jorgenson, renders the railroad company liable therefor, in the absence of gross negligence on his part.

[1] It is argued by the appellant (1) that, as to a foot passenger approaching from the west, the gates were maintained, within the meaning of the law, if the west gates were operated, even though the east gates were out of commission; (2) that “maintain and operate” gates does not mean to keep in perfect condition every minute, whatever happens, but must be reasonably construed as meaning only a duty to keep them in a state of repair, i. e., to put competent operators in charge, employ competent repair men, and use reasonable diligence to keep the same in continuous operation; (3) that neither the failure to have the east gate down nor the maintaining of a speed exceeding 12 miles an hour, in the absence of gates or a bell, can be held to be an omission to “comply with the requirements” of the statute. We are not disposed to adopt any narrow or restricted view of the requirements of this statute. It is said to be a drastic statute, and there is more or less truth in the statement. It is also, however, a statute in favorem vitæ. The Legislature, in view of the appalling frequency of grade crossing accidents, deemed it best to safeguard the public by requiring careful and somewhat burdensome precautions to be taken by railroad companies, especially as to city crossings. The wisdom or exact justice of these requirements is not for the courts to determine or criticise. So long as no positive constitutional right is infringed upon, the Legislature has full power to prescribe the means by which the grade crossing danger is to be obviated or lessened. The duty of the courts is to give effect to the legislative intention, if the intention be clear; to give the law such meaning, if there be room for two meanings, as will result in the accomplishment of the legislative purpose, rather than a meaning that will tend to defeat the purpose.

[2] We can give no such restricted meaning to the statute before us as counsel for defendant claim should be given to it. Its words are specific and clear. The railroad company is relieved of the 12-mile restriction when it “shall erect, maintain and operate” the gates, not when it shall erect and keep them in repair, or exercise due care to operate them. It is not necessary now to decide what conclusion we might reach in a case where the apparatus was suddenly wrecked by accident, and before opportunity for repair a passenger was killed or injured on the crossing by reason of the absence of the gates. That case is not here. In the present case the east gate had been out of commission for more than nine hours at a crossing in a populous city, where 150 trains a day cross the street. If the repair of the gates required the services of an expert workman not immediately at hand, the statute could have been satisfied by the placing of a flagman at the crossing for the time being, or the speed of trains could have been temporarily reduced to meet the new situation, and we hold that it was the duty of the defendant to adopt one or the other of these two courses.

[3] As to the contention that the statute is satisfied, so far as an east-bound passenger is concerned, if the west gate alone be operated, the same general propositions apply. It is plain that there might well be cases where the failure to operate the gates upon one...