Wells v. Chicago and North Western Transp. Co.

• Decision Date: 30 September 1980
• Docket Number: No. 78-278,78-278
• Citation: 98 Wis.2d 328,296 N.W.2d 559
• Court: Wisconsin Supreme Court
• Parties: Cecelia WELLS and Robert H. Wells, Plaintiffs-Respondents-Petitioners, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Respondent and Third-Party Plaintiff-Respondent, William Cotter and Clarice Cotter, Defendants-Appellants and Third-Party Defendants-Appellants, Marquette County, Third-Party Defendant.

Page 559

296 N.W.2d 559

98 Wis.2d 328

Cecelia WELLS and Robert H. Wells, Plaintiffs-Respondents-Petitioners, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY Defendant-Respondent and Third-Party Plaintiff-Respondent William Cotter and Clarice Cotter, Defendants-Appellants and Third-Party Defendants-Appellants Marquette County, Third-Party Defendant.

No. 78-278.

Supreme Court of Wisconsin.

Argued Sept. 3, 1980.

Decided Sept. 30, 1980.

Daniel G. Sandell (argued) and Johnson, Swingen & Sandell, S. C., Madison, on brief, for plaintiffs-respondents-petitioners.

Clyde C. Cross (argued), Karen Mercer and Cross & Mercer, Baraboo, on brief, for defendants-appellants and third-party defendants-appellants.

ABRAHAMSON, Justice.

The question on this review is whether the owner-occupant of land who fails to cut the brush or adequately trim the trees on certain land abutting a railroad highway grade crossing in violation of sec. 195.29(6), Stats., is subject to civil liability under the statute for damages caused to a highway traveler as a result of uncut or untrimmed brush or trees obstructing the traveler's view.

The question arises from the collision of a pickup truck driven by Robert Wells and a Chicago and North Western train at the intersection of the railroad line and Marquette County Highway F. Plaintiffs brought suit against the railroad for personal injuries and for the loss of society, companionship and consortium. The railroad answered the complaint and filed a third-party complaint against William and Clarice Cotter as owners and occupants of land abutting the intersection at which the accident occurred. The third-party complaint alleges that the Cotters failed to keep all brush cut and trees adequately trimmed in a certain triangular area of the land in violation of sec. 195.29(6), Stats. Plaintiffs then amended their complaint adding the Cotters as defendants and repeated substantially the same allegations as made against the Cotters in the third-party complaint. The theory of these pleadings is that the violation of sec. 195.29(6), Stats., renders the Cotters liable to a traveler injured as a result of the Cotters' failure to cut and trim the brush. The parties have not raised as an issue in this case whether the failure to cut and trim is negligence under the common law. The Cotters, as defendants and third-party defendants, moved for summary judgment dismissing the plaintiffs' and the third party's complaints against them. The Cotters' affidavit states that the land is in a rural area and in its natural condition and that the trees, bushes and vegetation are the result of natural growth.

The circuit court refused to grant the Cotters' motion for summary judgment, concluding that sec. 195.29(6), Stats., was enacted as a safety measure to protect highway travelers, that the statute imposes a duty on abutting landowners and that the landowner who violates the statute is liable for damages caused thereby. The court of appeals reversed the circuit court, Wells v. Chicago & North Western Transp. Co., 91 Wis.2d 565, 283 N.W.2d 471 (Ct.App. 1979), holding that a landowner incurs no liability to travelers on the highway injured as a result of the landowner's failure, in violation of sec. 195.29(6), Stats., to alter the natural condition of the property. We affirm the decision of the court of appeals.

Sec. 195.29(6), Stats., requires the owner or occupant of land abutting a railroad-highway grade crossing to take affirmative action, that is, to cut and trim. The wrong which the statute seeks to correct is the owner's or occupant's failure to take these steps. The owner or occupant may be relieved of the duty by the Public Service Commission. (The Transportation Commission now has this responsibility.) The only sanction stated in sec. 195.29(6) for failure to comply with the statute is a forfeiture. Sec. 195.29(6), Stats., provides as follows:

"(6) VIEW AT CROSSINGS; TREES AND BRUSH NEAR CROSSINGS; FORFEITURE. Every railroad shall keep its right of way clear of brush or trees for a distance of not less than 330 feet in each direction from the center of its intersection at grade with any public highway, and for such further distance as is necessary to provide an adequate view of approaching trains, from such highway. Every municipality shall keep the public highways within its jurisdiction clear of brush and shall adequately trim all trees within 330 feet of the center of any railroad highway grade crossing. Every person or corporation owning or occupying any land adjacent to any railroad highway grade crossing shall keep all brush cut and adequately trim all trees on said land within the triangles bounded on 2 sides by the railway and the highway, and on the third side by a line connecting points on the center lines of the railway and the highway, 330 feet from the intersection of said center lines. The commission, upon its own motion, or upon any complaint to the effect that any work required by this subsection has not been performed, after due notice and hearing, may order the corporation, municipality or person at fault to perform said work; provided, however, that if the physical conditions at any crossing are such that the performance of the required work will not materially improve the view for highway traffic, or, if unreasonable loss would be caused thereby, the commission may excuse the party in interest from performing the same. The commission may also make such order for the cutting of brush and the trimming of trees at private farm crossings as may be necessary and reasonable. If any person shall violate any provision of this section, or shall fail, neglect or refuse to obey any order made by the commission hereunder, or any judgment or decree made by any court upon such an order, for every such violation, failure or refusal such person shall forfeit not less than $25 nor more than $150."

This case, originating some ninety years after the original enactment of sec. 195.29(6), raises a question which the statute does not address, namely whether a violation of sec. 195.29(6) gives rise to a cause of action against the violator for injuries suffered. In previous cases, this court has used the guidelines set forth in the Restatement (Second) of Torts (1964) in determining whether the statute introduces a new ground of liability in the civil law. ¹ Kalkopf v. Donald Sales & Mfg. Co., 33 Wis.2d 247, 254, 147 N.W.2d 277 (1967). Sections 286 and 288 of the Restatement (Second) of Torts (1964) set forth the legislative purposes which the American Law Institute views as consistent with or inconsistent with a court's adopting a legislative standard of conduct in negligence cases.

"Sec. 286. When Standard of Conduct Defined by Legislation or Regulation Will Be Adopted

"The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

"(a) to protect a class of persons which includes the one whose interest is invaded, and

"(b) to protect the particular interest which is invaded, and

"(c) to protect that interest against the kind of harm which has resulted, and

"(d) to protect that interest against the particular hazard from which the harm results.

". . .

"Sec. 288. When Standard of Conduct Defined by Legislation or Regulation Will Not Be Adopted

"The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively

"(a) to protect the interests of the state or any subdivision of it as such, or

"(b) to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public, or

"(c) to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public, or

"(d) to protect a class of persons other than the one whose interests are invaded, or

"(e) to protect another interest than the one invaded, or

"(f) to protect against other harm than that which has resulted, or

"(g) to protect against any other hazards than that from which the harm has resulted."

Sec. 874A of the Restatement (Second) of Torts (1964) which is supplementary to sections 286 and 288 provides that "When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action." Cf. Miller v. Portland, 288 Or. 271, 604 P.2d 1261 (1980).

We turn to the history of sec. 195.29(6), Stats., to determine the legislative purpose.

Sec. 195.29(6), Stats., is derived from chapter 512, Laws of 1889, "An act for the better protection of life and property on highways intersected by railways in this state." The 1889 law required every corporation owning or operating a railroad to clear its right of way "the distance of twenty rods each way . . . at the intersection of any public highway by such railway in this state." An owner of land adjacent to the intersection of a railroad and highway was required to clear certain land of brush and to trim trees up to the height of 10 feet. The sanction for the neglect or refusal of a railroad or owner to comply with the statute was $100, one-half of which was to be paid to the town prosecuting the action. ²

In 1919 the law was amended in two respects. Municipalities were required to keep highways clear of brush and to trim trees within 330 feet of any railroad highway grade crossing, and the railroad commission was given the power to order the...