Olson v. Chicago, Great Western Ry. Co.

• Citation: 259 N.W. 70,193 Minn. 533
• Decision Date: 01 March 1935
• Docket Number: No. 30077.,30077.
• Parties: OLSON v. CHICAGO, GREAT WESTERN RY. CO.
• Court: Minnesota Supreme Court

259 N.W. 70

193 Minn. 533

OLSON v. CHICAGO, GREAT WESTERN RY. CO.

No. 30077.

Supreme Court of Minnesota.

March 1, 1935.

Appeal from District Court, Goodhue County; W. A. Schultz, Judge.

Action by Lydia M. Olson against the Chicago, Great Western Railway Company. From an order denying her motion for a new trial, after directed verdict for defendant, plaintiff appeals.

Affirmed.

Albert Mohn, of Red Wing, and A. J. Rockne, of Zumbrota, for appellant.

Stearns, Stone & Mackey, of St. Paul, and Walter H. Jacobs, of Chicago, Ill., for respondent.

JULIUS J. OLSON, Justice.

Plaintiff suffered an injury on the evening of November 8, 1931, between 7 and 8 o'clock, while riding in an automobile with her husband, who was the driver thereof. When she rested below, the court on defendant's motion directed a verdict against her. She was unsuccessful upon her motion for a new trial, and the case comes to us for review upon appeal from that order. The evidence in her behalf tended to establish the following facts: The husband ditched the car in order to prevent a collision with one of defendant's freight trains at a highway crossing. The near collision occurred at a right angle intersection of the highway by the railroad. Photographs show that the highway was perfectly straight for some distance on each side of the crossing, and that the railroad crossing is raised very slightly above the level of the highway. Plaintiff and her husband were approaching the railroad crossing from the west, and on that side of the track there was no sign warning of the presence of the crossing. There was such sign on the east side of the track, but this was concealed from plaintiff and her husband by the presence of a long freight train which was passing over the crossing. Neither plaintiff nor her husband realized that they were approaching the railroad crossing, although they had passed over the crossing at least once before that. The evening was dark, but the atmospheric conditions were normal. The color of the freight cars blended with the surroundings. The engine of the train had passed the crossing to the driver's right so that he did not observe its headlight. The caboose had not yet reached the crossing, and its lights were not discernible to him, at least such did not attract his notice. The automobile was traveling at approximately 35 miles an hour when the driver first became aware of the presence of the freight train. His claim is described by him in his own words, as appears from the record, thus:

"And I noticed nothing at all in the road until just all of a sudden this freight train was passing right in front of me, and, well, it seemed as though we were almost upon the train when I got the glimpse of it, all of a sudden the lights picked up the train going across.

"Why, as we came along my wife sat beside me in the front seat, and as we approached towards Randolph I wasn't sure at that time because the road was rather strange to me, a sign loomed up, I slowed up for it, had my lights toward it and it pointed to Randolph, so then I knew I was on the right road and I kept on going, we took a kind of a little dip and just as I took, the dip my headlights flashed on the freight train, it seemed within just a few feet of the car. I slammed the brakes on as hard as I could and the gravel in the road kind of rocked the car and I saw we were going to slide under so I just swung to the ditch and landed within a few feet of the train on the side of the bank and I thought then that we were going to go under so I gave the wheel a big snub and we just rolled in the ditch and we landed on the right side up on the tires with the engine running, lights burning, only we were facing the other direction that we were coming. * * *"

Plaintiff in substance and effect supports her husband's claim. It will thus be observed that there was no collision with the train. The sole basis for plaintiff's right of recovery is based upon the theory that the railroad crossing was not properly protected by crossing signs. It is conceded that there was a proper sign on the east side of the track. This, however, was obscured by the presence of the train. He claims that his lights were good, but is not quite sure whether they would reveal a person 200 feet ahead on a level road.

The single question presented for review may be stated thus: Does ordinary prudence require a railroad company to erect a sign or other warning of the presence of its railroad crossing at grade of a highway in addition to the crossing signs provided by statute? The question is not new. It has been before this and other courts in many cases. In Crosby v. Great Northern Railway Co., 187 Minn. 263, 245 N. W. 31, cases from other jurisdictions were carefully reviewed. It is not necessary to do so again. We have recently had occasion to pass upon an almost identical question in Ausen v. Minneapolis, St. Paul & S. S. M. Ry. Co., 193 Minn. ___, 258 N. W. 511. Reference to these cases should afford a sufficient guide for decision here.

Crossing signs are required and regulated by statute. 1 Mason's Minn. St. 1927, § 4733, requires every railway company to maintain, "wherever any of its lines crosses a public road, a proper and conspicuous sign indicating such crossing." By Laws 1925, c. 336, § 2 (1 Mason's Minn. St. 1927, § 4743-2), provision is made for uniform warning signs and the types thereof. The Railroad and Warehouse Commission is "authorized and required to adopt and prescribe uniform warning signs for use at grade crossings * * * which will furnish adequate warning of the existence and nature of such grade crossings and to make regulations as to the place of installation." That section further provides for distinct types of such signs. It is further provided that railroads must erect signs at each grade crossing "hereafter established and at each grade crossing where and when the existing crossing signs are replaced. * * *" Id., § 4743-3. If additional signs are deemed necessary, so the statute provides, the commission is authorized "to designate any such grade crossings requiring such additional signs on either or both sides of said crossing." Id., § 4743-4. It becomes the duty of the railway company upon 30 days' notice from the commission to furnish such signs so designated, and "such public authorities shall erect said signs in conspicuous places on said highway on either or both sides of such grade crossings." Id., § 4743-4. Stop signs are also provided for. But here too the commission is authorized to designate the crossings "requiring such additional protection." The railway company must within 30 days after notification furnish and erect such crossing signs on each side of the crossing. Id., § 4743-5. Drivers of vehicles are required to reduce the speed of such vehicles upon approaching such grade crossing "to such a rate that it [the vehicle] can be brought to a full stop in case of necessity before reaching the nearest rail of the railroad track and to cautiously proceed over said crossing at a speed not to exceed ten miles per hour." Id., § 4743-8.

It is obvious that the Legislature has by statute prescribed a uniform system of crossing signs and the manner of their placements. In the instant case no showing was made that since the enactment of this law the then existing sign of the railway company had been replaced or that the commission had ordered it to furnish crossing signs and that the company had failed so to do. The Legislature having made or provided for adequate rules and regulations respecting crossing signs and warnings, it is not for us to conjure others. We should not interfere. The title of the act is: "An act providing for the manner of constructing crossings, and for the construction and maintenance of certain signs at the crossings of railroads, streets and public highways, and regulating the use of such crossings by the public, and for the establishment, vacation and re-location of such crossings and prescribing penalties." Laws 1925, c. 336. This indicates a clear intention on the part of the Legislature to occupy the entire field. We are sustained in this view by State v. Northern Pacific Ry. Co., 176 Minn. 501, 507, 223 N. W. 915, 917. There the court had for consideration section 4743-14, which relates to the power of the commission to order constructed overhead or underground crossings. Said the court: "We reach the conclusion that the Legislature intended to and did confer upon the commission power to determine all questions relating to the matter of railroad crossings." In State ex rel. City of St. Paul v. Minneapolis, St. P. & S. S. M. Ry. Co., 190 Minn. 162, 251 N. W. 275, the same section was under consideration. The second paragraph of the syllabus reads: "The statutory jurisdiction (Mason's Minn. St. 1927, § 4743-14) of the Railroad and Warehouse Commission over railroad crossings extends to the reconstruction of an old bridge over a highway. It is not limited to the original construction attendant upon separation of grades." Against the charge there made that the statute under consideration should be strictly construed, the court said in the first paragraph of the syllabus: "However radical its change, a statute is not to be so narrowed by construction as to defeat its purpose, simply because it is an innovation on common-law principles."

In behalf of plaintiff it is claimed that circumstances may be such as to require more than statutory precautions. Our attention is directed to Shaber v. St. Paul, M. & M. Ry. Co., 28 Minn. 103, 9 N. W. 575. It is obvious to us that what the court was there considering was adequate signs to travelers crossing the railroad of the presence of the track so as to avoid collision with approaching trains, not trains actually occupying the crossing. Other cases of similar import are Zenner v. Great Northern R. Co., 135 Minn. 37, 159 N. W. 1087; Gowan v. McAdoo, 143 Minn. 227, 173 N. W. 440. We do not...