Lee v. Molter
| Decision Date | 11 February 1949 |
| Docket Number | 34805. |
| Citation | 35 N.W.2d 801,227 Minn. 557 |
| Parties | LEE v. MOLTER. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. Where defendant, operator of a truck, upon approaching a railroad crossing with which he was thoroughly familiar failed to stop or appreciably slacken speed for either of two 'stop' signs plainly visible at such crossing and failed to observe a gas motorcar approaching in clear view from the left on the tracks, as a result of which a collision occurred between the two vehicles, Held that defendant was negligent as a matter of law.
2 M.S.A. s 169.96, providing that 'a violation of any of the provisions of this chapter, * * * shall not be negligence per se but shall be prima facie evidence of negligence only,' did not prevent court from holding defendant negligent as a matter of law where his violation of the statute was admitted and was clearly the proximate cause of the accident, and where there was no evidence tending to justify or excuse such violation.
3. Issue of plaintiff's contributory negligence and that of his subordinate Held properly submitted to the jury, where evidence indicated that due care required their observation of the condition of the track, the approach of an expected freight train, and the highway as well, and where it appeared that while endeavoring to carry out such responsibility they looked, but failed to see defendant, who at the time of such observation could have been beyond their range of vision.
4. Rule that vehicles of a rail carrier have right of way at highway crossings Held to extend to gas motorcars being operated on tracks.
5. Statute impliedly requiring that locomotives be equipped with a bell or whistle does not apply or extend to gas motorcars.
6. Printed rules and regulations of a railway company are for the guidance of its employes and do not represent rules or principles of negligence applicable in highway crossing collision cases.
7. Verdict of $12,571 Held not excessive where plaintiff's injuries permanently impaired his faculties and rendered him unfit for further employment in the sole line of work for which he was trained.
Appeal from District Court, Otter Tail County; Rol E. Barron Judge.
Swanson Brothers, of Detroit Lakes, and Day, Lundberg & Stokes, of Grand Forks, N.D., for appellant.
Dell, Rosengren & Rufer, of Fergus Falls, for respondent.
Action for personal injuries arising out of a collision between a railroad section gas motorcar on which plaintiff, the foreman of a section crew, was riding and which was traveling in a northwesterly direction on the Great Northern railway tracks and a truck owned and operated by defendant, traveling in a westerly direction on a graveled county highway, at a point where the latter crosses such railway tracks some four miles northwest of Fergus Falls.
Defendant denied negligence, and alleged that the contributory negligence of plaintiff and one Martin Kowalski, operator of the gas car and a member of the crew of which plaintiff was foreman, was the sole cause of the accident.
The trial court charged that defendant was guilty of negligence as a matter of law, and submitted to the jury the issues of proximate cause, contributory negligence, and damages. The jury returned a verdict for plaintiff for $12,571. Defendant appealed from the judgment after denial of his alternative motion for judgment or a new trial.
Defendant's numerous assignments of error can be reduced to the four following principal contentions: (1) The trial court erred in holding defendant negligent as a matter of law; (2) plaintiff and his subordinate employe, whose negligence would be imputed to plaintiff, were guilty of contributory negligence as a matter of law; (3) the trial court erred in certain instructions to the jury hereinafter outlined and in the admission or exclusion of evidence hereinafter set forth; and (4) the verdict was excessive.
The accident occurred on October 30, 1945, at 11 a.m. It was a dry, cloudy day. At and near the scene of the accident, the railway tracks, on which the gas car was traveling in a northwesterly direction, extend in a southeast-northwest direction. The county road on which defendant was driving extends east and west, but as it approaches from the east to within approximately 500 feet of the tracks it turns slightly to the north a short distance, runs somewhat parallel to the tracks, and thereafter turns back to its general east-west direction as it crosses the tracks. It is comparatively level and is about ten feet below the railway track grade for some distance before it approaches the tracks, but ascends slightly to cross them. A grove of trees and underbrush located just east of the tracks about 300 feet southeast of the crossing obstructs the view of the tracks from the highway for a short distance, and vice versa.
Defendant, who was thoroughly familiar with the highway and crossing, testified that as he approached the tracks from the east he looked to his left until he was close to the crossing to determine whether a train was approaching; that thereafter he looked to his right and, without greatly slackening his speed, crossed the tracks at approximately 25 miles per hour; that he did not stop for either of the two railroad 'stop' signs, located about 30 feet east of the center of the crossing, and at no time did he observe the gas car, although it was plainly within his view had he looked to the left.
Plaintiff rode near the right front of the gas car, facing somewhat east toward the highway. The operator of the gas car, Kowalski, was situated at the left rear thereof and faced toward the front, in the direction in which the car was traveling. Three other men were seated thereon in various locations.
Plaintiff testified that prior to the collision he was making a close inspection of the tracks, looking for broken angle bars, bolts, and rails, dips in the track, low spots, defective lines, crooked lines, and related matters, as he was required to do by virtue of his position; that he was likewise watching to determine whether anything had fallen from trains using the track and for any obstructions or objects on the track which would constitute a danger to trains; that after the car had passed the grove southeast of the tracks and had again come into the clear he looked down the road to his right for about three-quarters of a block, but saw nothing; that he then turned to look to his rear for an expected freight train coming from Fergus Falls, which was to pass the gas car and which required that plaintiff and his crew remove the car from the tracks in time for the freight to pass safely; and that while he was thus looking to his rear the collision took place.
Kowalski testified that after passing the grove of trees he released the motor so that the car was coasting; that when he was approximately 400 feet from the crossing he looked east toward the highway for approximately 400 feet and saw no truck, automobile, or other vehicle upon the road; that he knew of the existence of the stop signs on the approach to the crossing; that he was occupying a position facing generally to the left, and that it was necessary that he turn to the right and look over his shoulder to make such observation; that after he observed nothing on the highway within a reasonable distance he looked to his left for possible hazards; that thereafter he turned to his left and looked back to determine whether the expected freight train was in sight; that he then estimated such freight to be some distance back so that the gas car might proceed safely to the next crossing; that he then looked forward and for the first time saw defendant's truck directly in front of him only four or five feet away; and that he attempted to apply his brakes, but was too close to the truck to avoid collision. It is undisputed that the truck was then traveling at least 25 miles per hour, while the gas car had slowed to some four or five miles per hour.
1. On the basis of this court's prior decisions, it is clear that the district court did not err in instructing the jury that defendant was negligent as a matter of law. M.S.A. s 169.27 provides:
Defendant approached this crossing, with which he was familiar observed the warning signs, with which he was likewise familiar, and made no attempt whatever to comply with the statutory regulations insofar as reducing his speed or bringing his truck to a complete stop prior to passing over the railroad tracks. The gas motorcar obviously was in plain sight for some distance ahead of the crossing, and there was nothing in the evidence to indicate any extenuating circumstances or excuse for defendant's failure to exercise due care or to comply with the above statutory regulations. See, Haase v. Chicago M. St. P. & P.R. Co., D.C., 76 F.Supp. 393; Luce v. Great Northern Ry. Co., 203 Minn. 470, 281 N.W. 812; Jones v. Great Northern Ry. Co., 178 Minn. 322, 227 N.W. 45; Munson v. Chicago Great Western R. Co., 170 Minn. 513, 212 N.W. 946; Bailey v. Minneapolis, St. P. & S.S.M. Ry. Co., 166 Minn. 118, 123, 207 N.W. 26, 560; Richter v. Chicago R.I. & P. Ry. Co., 164 Minn. 284, 204 N.W. 881; Jensen v. Minneapolis, St. P. & S.S.M. Ry. Co., 154 Minn. 414, 191 N.W. 908; Anderson v. Great Northern Ry. Co., 147 Minn. 118, 179 N.W. 687. The cited cases involved actions by automobile drivers...
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