Wittrup v. Chicago & Northwestern Ry. Co.

• Decision Date: 19 March 1975
• Docket Number: No. 2--56466,2--56466
• Citation: 226 N.W.2d 822
• Parties: Carl WITTRUP, Appellant, v. CHICAGO AND NORTHWESTERN RAILWAY COMPANY, Appellee.
• Court: Iowa Supreme Court

Page 822

226 N.W.2d 822

Carl WITTRUP, Appellant, v. CHICAGO AND NORTHWESTERN RAILWAY COMPANY, Appellee.

No. 2--56466.

Supreme Court of Iowa.

March 19, 1975.

Bierman & Bierman, Grinnell, for appellant.

Davis, Johnson, Burt & Davis, and R. Jeffrey Lewis, Des Moines, for appellee.

Considered en banc.

REYNOLDSON, Justice.

Plaintiff is owner of a truck damaged when it came into collision with defendant's railroad overpass. At close of all evidence trial court directed a verdict in defendant's favor and plaintiff appeals. We reverse and remand for new trial.

The railroad overpass spanned Second Avenue in Grinnell, Iowa. Its elevation above street level varied from approximately 8 feet 5 inches to 8 feet 10 inches. Plaintiff's boom truck was about 9 feet 6 inches in height. On the morning of August 24, 1970 it was operated by Mike Cornelius, a student of construction technology at Iowa State University then employed as a welder in plaintiff's grain handling equipment business. Cornelius was driving the truck from one job to another. He was unfamiliar with Grinnell streets and had never before driven beneath the railroad overpass on Second Avenue. The approach to the underpass was unobstructed but downhill. Cornelius observed no clearance or warning signs and thought the truck would clear until just before the collision.

In sustaining defendant's motion for directed verdict, trial court held as a matter of law defendant had no 'duty' to post low clearance warning signs and that Cornelius was contributorily negligent in operation of the truck.

Appealing, plaintiff asserts the railroad had a common law 'duty' to warn users of public highways of dangerously low clearances of overhead bridges, and that his driver was not contributorily negligent as a matter of law.

I. Failure to warn.

Defendant rightly argues there is no statute in Iowa requiring a railroad to post low clearance warning signs. But that is only the beginning of a necessary analysis.

In absence of a statutory obligation, to state there is or is not a duty is merely to state a result, a conclusion that plaintiff's interests are or are not entitled to legal protection against defendant's action or lack thereof. MacLean v. Parkwood, Inc., 247 F.Supp. 188, 191 (D.N.H.1965), affirmed 354 F.2d 770 (1 Cir. 1966).

'It is better to reserve 'duty' for the problem of the Relation between individuals which imposes upon one a legal obligation for the benefit of the other * * *. In other words, 'duty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk.

'* * * It is a shorthand statement of a conclusion, rather than an aid to analysis itself. * * * (I)t should be recognized that 'duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' (Emphasis added.)

--Prosser, The Law of Torts § 53, pp. 324--26.

See also 2 Harper and James, The Law of Torts § 18.8, pp. 1058--61 ('Another and sounder objection to the duty analysis is that it is unnecessary and simply duplicates the inquiry into negligence.' Id. p. 1060).

In short, there is a place in our negligence law for a designation of duty: as a statutorily imposed obligation or as a label to signify a relationship between the parties, e.g., owner-licensee, carrier-passenger, manufacturer-consumer, employer-employee, in which the law recognizes a potential liability for harmful conduct. But as a label it carries with it no combination to unlock this issue: whether, applying logic, sound reason, and enlightened public policy, this railroad should be immune from liability to plaintiff, if it failed to act in a situation clearly entailing foreseeable harm or damage to plaintiff and others driving through the underpass.

Defendant asserts only 'the authorities' are permitted to post low clearance warning signs, citing sections 321.253 and 321.255, The Code. To follow that rationale would in instances jeopardize any relief to injured or damaged persons. A tort claim against the State unquestionably would be met with an immunity defense grounded on the theory posting of such warnings involves exercise of discretion. See Seiber v. State, 211 N.W.2d 698 (Iowa 1973).

We would have no difficulty holding any other nongovernmental person or corporation maintaining a rigid obstruction across a highway at a height no higher than the ceiling in the ordinary home had an obligation to warn affected motorists. There should be no reason to exempt railroads unless our statutes compel it.

Of course, if there was no 'duty' to the plaintiff at eight and a half feet then there was no 'duty' at four feet or even two feet. But where the obstruction is reduced to ground level we have held a Common law obligation to warn arises. Jasper v. Chicago Great Western Railway Company, 248 Iowa 1286, 84 N.W.2d 21 (1957); see Lindquist v. Des Moines Union Ry. Co., 239 Iowa 356, 30 N.W.2d 120 (1947). This anomaly resulting from trial court's ruling should be carefully examined in reaching our decision on appeal.

In asserting its lack of obligation to warn comports in some manner with a legislative expression the defendant apparently relies on 1) failure of the State to impose this obligation by statute and 2) imposition of an obligation to warn on the State, when it considers a warning necessary.

Taking up the first point, the fact certain conduct of railroads is prescribed or proscribed by statute does not mean it is immune from tort liability for other negligent conduct. In railroad law as in our motor vehicle law, tort liability can arise outside the confines of statute-mandated conduct. See Lindquist v. Des Moines Union Ry. Co., supra, 239 Iowa at 360, 30 N.W.2d at 122 ('We have always recognized the rule that negligence may be predicated upon a statute violation or upon the common law rule of 'ordinary care under the circumstances.' It may be based upon acts of commission or of omission.'); Anderson v. United States R. Adm., 197 Iowa 1, 5, 196 N.W. 584, 586 (1924) ('(I)f, by reason of obstructions to the view of one passing over the crossing, it was more than ordinarily dangerous, and the exercise of ordinary care on defendant's part required that the whistle on an approaching engine should be sounded, then a duty to do so arose, notwithstanding that no such duty was imposed by statute.').

Turning to the second consideration, the defendant misplaces its reliance on statutes which require the state highway commission to adopt a manual and specifications for traffic-control devices '* * * Consistent with the provisions of this chapter * * *,' (§ 321.252, The Code) (Emphasis added) and to place and maintain such signs (§ 321.253, The Code). Even the railroad signs and signals which the code does prescribe are not in chapter 321. See, e.g., § 478.1, The Code. And a clear distinction is made between the traffic-control devices referred to in §§ 321.252 through 321.255 and railroad signs. See § 321.259 Unauthorized signs, signals, or markings ('* * * official traffic-control device Or any railroad sign or signal * * *') (Emphasis added); § 321.260 ('* * * any official traffic-control device * * * any railroad sign or signal * * *'). Compare § 321.1(62) with § 321.1(64), The Code.

The same defense raised by defendant in this case was rejected in Jasper v. Chicago Great Western Railway Company, supra, 248 Iowa at 1296, 84 N.W.2d at 27:

'Defendant argues it would have violated section 321.259, Code 1954, I.C.A., if it had erected a barricade or warning sign near the apparent crossing. The statute is too long to set out here in full. It provides in substance that no person shall maintain upon any highway any unauthorized sign which purports to be an official sign, traffic-control device or railroad sign or which attempts to direct traffic. 'This shall not be deemed to prohibit the erection upon private property adjacent to highways of signs giving useful directional information of a type that cannot be mistaken for official signs.'

'If this statute has any application here it seems clear defendant could have erected a barricade or warning sign near this apparent crossing without violating the section. The crossing on the night in question was not in fact a public one. It only appeared to be. Defendant could certainly have erected a barricade or sign to direct traffic toward the old established crossing until the construction work was completed.'

If § 321.259 is applicable here, it is just as apparent this railroad could have placed a sign on its own property (either on its overpass or its grade) warning motorists of the low clearance. The great weight of authority is that even an unauthorized sign is not meaningless when questions of negligence are under consideration. Geisking v. Sheimo, 252 Iowa 37, 41, 105 N.W.2d 599, 601 (1960).

Obviously the main purpose of § 321.259 is to prevent commercial interests from using imitation official signs to slow or direct traffic or to erect devices which would obscure official signs. Certainly that statute cannot excuse one who maintains a traffic hazard for failing to warn those who might be injured thereby.

We are not required here to determine whether defendant might be negligent for failing to warn had the state or municipal government placed and maintained a visible warning sign. This issue was determined is favor of the railroad by the Texas court in Lewie Montgomery Truck. Co. v. Southern Pacific Co., 439 S.W.2d 691 (Tex.Civ.App.1969). This leaves two Illinois decisions in support of defendant's position. The decision in older lead case, Carr v. Chicago & Northwestern Ry. Co., 333 Ill.App. 567, 572, 77 N.E.2d 857, 860 (1948), was apparently based in part on proximate...