Sullivan v. Boone

• Decision Date: 16 June 1939
• Docket Number: 31926,31927.
• Citation: 286 N.W. 350,205 Minn. 437
• Parties: SULLIVAN v. BOONE et al. COSSI v. SAME.
• Court: Minnesota Supreme Court

286 N.W. 350

205 Minn. 437

SULLIVAN v. BOONE et al.

COSSI v. SAME.

Nos. 31926, 31927.

Supreme Court of Minnesota.

June 16, 1939

Appeal from District Court, St. Louis County; Edward Freeman, Judge.

Actions by Irving Sullivan, administrator of the estate of Kenneth Sullivan, deceased, and by Richard Cossi against E. E. Boone the Duluth, Winnipeg & Pacific Railway Company, and others for damages for the deaths of Shirley Cossi and Kenneth Sullivan in a railroad crossing collision. From orders for judgments notwithstanding the verdicts, the plaintiffs appeal.

Orders affirmed.

In absence of special circumstances creating extraordinary hazard at railroad crossing at which truck collided at night with nineteenth car from end of 86-car freight train, due care did not require railway company to install warning signals in addition to those required by railroad and warehouse commission under statutory authority, as respects railway company's liability for deaths of two occupants of truck whose lights complied with requirements of highway law. Mason's Minn.St.1927, § 10263; Laws 1927, c. 412, § 48(a).

Syllabus by the Court .

1. Where a freight train is passing over a highway crossing in the night time and an automobile, traveling at from 35 to 45 miles per hour, runs into the nineteenth car from the end (there were 86 cars in all), the failure to sound the statutory bell and whistle signals cannot be considered a proximate cause of the collision.

2. Unless, in such a case, there are about the crossing or in its immediate environment special circumstances creating an extraordinary hazard, due care does not require of the railroad company the installation of warning signals in addition to those required by the railroad and warehouse commission under statutory authority.

I. R. Galob, of Hibbing, and Austin & Wangensteen of Chisholm, for appellants.

Gillette, Nye, Harries & Montague, of Duluth, for respondent Duluth, Winnipeg & Pacific Ry. Co.

STONE Justice.

Consolidated for trial, this pair of actions for the deaths of Shirley Cossi and Kenneth Sullivan resulted in verdicts against defendant railroad and for defendants Boone. From orders, for judgments notwithstanding the verdicts, plaintiffs appeal.

The cases arose from a railroad crossing collision. Defendant Wiley Boone, with the two decedents and Miss Helen Tomar as passengers, was driving east from Chisholm to Eveleth. The train was going north, bound for Virginia. The collision took place at 2:25 A. M. of March 16, 1937.

The night was cold and dark, but clear. There were yellow and black disc ‘ Railroad’ signs about 300 feet from the crossing on each side. The post of the one on the west was somewhat buried in a snow bank, over and against the background of which the disc stood out in prominence except that some portion of it nearer the road had been bent backward by the highway snow plows. There was a reflector sign 150 feet west of the crossing, but it was temporarily out of commission, broken and turned so that it faced due north, rather than west and toward eastbound traffic. It is said to have been so damaged by the snow plows. In keeping the 20 foot concrete highway clear, they had piled the snow in windrows, flanking the pavement on both sides, from 3 to 4 1/2 feet high. Close to the rails, one on each side, were tall cross-arm, or ‘ sawbuck’, crossing signs. Their posts were striped diagonally with bars of black and white paint.

The crossing is in an area of second growth timber, averaging 25 to 30 feet in height. But the highway right of way was clear. So also that of the railroad. All trees and brush had been cut from the angles of the intersection back far enough so that there was nothing of the ‘ blind’ about the crossing, save that it was in a relatively flat area. East of the railroad was no timber for over 400 feet. Both highway and railroad were on the usual law ‘ fills' or embankments. Anyone approaching on the road, if even slightly attentive, could not have avoided timely warning of a train on or anywhere near the crossing.

One hundred feet west there was, from the highway, a clear view for from 600 to 700 feet south along the railroad. From 200 feet west there was similar visibility south for from 300 to 400 feet.

Some light may be thrown upon the cause of the tragedy by the fact that the four young people involved, although innocently, had been making a night of it. All four were occupying the one seat in the enclosed cab of the truck. Boone was behind the wheel, Miss Tomar next to him, and on her right Sullivan, with Miss Cossi on his lap.

The trial judge, in his decision, stated: ‘ The freight train * * * consisted of eighty-six freight cars besides the engine and caboose. The last thirty-eight cars of the train except the caboose were flat cars. The top of the flat cars was four and one-half feet above the top of the rails, and many of these flat cars were equipped with upright stakes extending several feet above the top of the flat car, and many of them were birch stakes with birch bark upon them. The automobile ran into the nineteenth flat car from the rear.'

The trial judge also said rightly that ‘ the great weight of the evidence is to the effect that the statutory signals [by bell and whistle] for the approach to the crossing were given.’ The railroad had complied with all the requirements of the railroad and warehouse commission in respect to warning signs. The commission had inspected the place and refused to make it a ‘ stop’ crossing.

1. In respect to statutory signals by bell and whistle, the statute, Mason Minn.St.1927, § 10263, reads thus: ‘ Every engineer, driving a locomotive on any railway, who shall fail to ring the bell or sound the whistle * * * at least eighty rods from any place where such railway crosses a traveled road * * * or to continue the ringing of such bell or sounding of such whistle at intervals until such locomotive and the train thereto attached shall have completely crossed such road * * * shall be guilty of a misdemeanor.'

We now assume, favorably to plaintiffs, that there was a jury question whether the signals were sounded before the locomotive reached the crossing. Such failure, if failure there was,...