Massmann v. Great Northern Railway Company
| Decision Date | 23 December 1938 |
| Docket Number | 31,855 |
| Citation | 282 N.W. 815,204 Minn. 170 |
| Parties | MARY MASSMANN v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action for wrongful death in the district court for Stearns county by the special administratrix of the estate of Henry Massmann against the Great Northern Railway Company. The case was tried before J. B. Himsl, Judge, and a jury. After verdict of $7,000 for plaintiff, defendant appealed from an order denying its alternative motion for judgment or a new trial. Reversed with directions to enter judgment for defendant.
Railroad -- crossing -- collision with auto -- signals.
1. The record shows as a matter of law that the defendant exercised ordinary care in the erection of signs warning the drivers upon the highway of the existence of a grade crossing at the point where plaintiff's intestate was killed.
Railroad -- crossing -- collision with auto -- condition of crossing.
2. There was no evidence sufficient to support a jury's finding that loose planks on the crossing contributed to the death of plaintiff's intestate.
Railroad -- crossing -- collision with auto -- contributory negligence of motorist.
3. Contributory negligence of the plaintiff's intestate appears as a matter of law.
A. L Janes, J. H. Mulally, and Atwood & Quinlivan, for appellant.
Peter Ahles, for respondent.
In an action to recover for the death of Henry Massmann, who was killed at a grade crossing one-half mile west of the village of Waite Park, Stearns county, on August 17, 1937, the plaintiff had a verdict, and the defendant has appealed from an order denying its motion for judgment or a new trial.
The highway which crosses defendant's track at the point where Massmann was killed runs north and south, is graded but not paved or graveled. It intersects the single track of the main line of the Great Northern Railway at approximately right angles. Massmann was driving south at 35 or 40 miles an hour on this highway toward the crossing a little before noon August 17, 1937. The eyewitnesses say that he did not slacken speed until he was struck by the defendant's eastbound passenger train, which was traveling about 55 Miles an hour and had its bell ringing automatically from a point at least half a mile west of the crossing. The whistle was sounded at the whistling post a quarter of a mile from the crossing and was blown at intervals until the train was over the crossing. For about 100 feet north from the railroad track the highway slopes gently down to a point about two and a half feet below the level of the rails at the crossing. From that point north there is a gradual rise for about 300 feet to a point practically level with the crossing. North of that again the road slopes down for about 600 feet to a point six feet lower than the level of the crossing. Seventy-eight feet north of the railroad track and a like distance west of the highway stands a small house with some outbuildings to the west of it. The house faces east toward the highway, and the porch was on that side. There was a snow fence along the north side of the railroad track commencing about 47 feet west of the highway. The house and fence constitute the only obstructions to the view as a driver approaches the crossing from the north. This snow fence was approximately six feet high and was constructed of horizontal boards four to six inches wide placed about four inches apart. The engine and cars of the train which struck Massmann stood about 15 feet above the track and were plainly visible above the snow fence when the train was within 250 or 300 feet of the crossing and Massmann 100 feet therefrom. Except for the house and fence, there was also a clear view from the highway of the track and the grade on which it lay and of the telegraph and telephone poles for a considerable distance to the west. A few feet east of the crossing on the south side of the railroad track was a railroad crossing sign of the triangular type used by the Great Northern Railway. It was painted white with black letters reading, "RAILROAD CROSSING." The rails of the track itself could be seen for more than 100 feet as the driver approached the crossing from the north. The only eyewitnesses to the collision were the fireman of the train and a girl 12 years of age named Ruth Gohman, who lived in the house near the crossing. Ruth was on the front porch of the house as the train approached, and she saw the Massmann car as it passed on the road going toward the crossing and said that it was going fast and that when it went upon the crossing, "There was a crash and dust and smoke." The fireman saw the Massmann car when it was about 400 feet from the crossing and the engine was about 600 feet from it. He estimated the speed of the car at 35 to 40 miles an hour, and he watched it except for the time when it was behind the Gohman house. When it came out from behind the house he shouted to the engineer because he thought the car was not going to stop. The car kept right on going straight across the crossing and had got about two-thirds of the way across before it was hit. It was carried about a quarter of a mile on the pilot of the engine.
There was evidence that the planks on the crossing were loose, and the center plank was picked up by the engine and carried to the point where the train was brought to a stop.
The plaintiff contends that there was negligence on the part of the defendant company in two respects: First, that it did not erect adequate warning signals of the presence of the railroad crossing; and, second, that the condition of the planks on the crossing impeded the passage of the car and retarded it so that the engine struck it.
1. During the trial of the case the opinion of this court in Licha v. N.P. Ry. Co. 201 Minn. 427, 276 N.W. 813 was handed down, and the plaintiff, who had at that time rested her case, was allowed to reopen it and present additional testimony in an endeavor to show that the crossing was an extra-hazardous one requiring more protection than that offered by the statutory crossing sign erected some years before by the railroad company. The Licha case reversed Olson v. C.G.W.R. Co. 193 Minn. 533, 259 N.W. 70, which took the position that L. 1925, c. 336, constituted a complete code of regulations superseding and including all law in existence at the time of its adoption relating to warning signals at railroad crossings, and that compliance therewith freed the railroads from any further obligation to protect the crossings by any signals or signs in addition to those prescribed under the code. This court in the Licha case concluded that the legislature did not intend by c. 336 so to provide. It concluded, as do the majority of the courts in this country, that if ordinary care requires more than was required under the code that liability would follow if a failure to exercise ordinary care was a proximate cause of injury. In general principle, the Licha case did not change the law from what it had been prior to the Ols...
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