Olson v. Chicago Great Western Railroad ( 1935 )

The question presented by this appeal is whether or not ordinary prudence requires a railroad company to erect a sign warning of the presence of its railroad crossing at grade over a highway in order to protect people riding in automobiles from colliding with a train standing upon or passing the crossing.

The defendant relies chiefly upon Crosby v. G. N. Ry. Co.187 Minn. 263, 245 N.W. 31, 32, and the cases from other jurisdictions cited therein. In that case this court said [187 Minn. 266]:

"Statutory signals for trains approaching a highway crossing are solely for the benefit of travelers on the highway so as to warn them of approaching trains. They are immaterial when and where, as here, the train is actually upon and occupying the crossing when the traveler arrives. * * * It would seem that a train upon a crossing is itself effective and adequate warning."

A number of cases from outside jurisdictions are cited to the same statement. In the Crosby case, however, there was no lack of warning signs. In addition to the large crossing sign, there was a warning sign 300 feet from the crossing in the direction from which the two young men who were injured were approaching. A careful reading of the Crosby opinion clearly shows that the point which this court was really considering was whether or not the defendant was bound under the circumstances as they existed at that particular crossing to do anything more than provide the ordinary statutory warning. We recognized the rule that circumstances might be such as to require more than the statutory precautions, but held that the situation there under consideration did not require more warning than the statute prescribed. In Shaber v. St. P. M. M. Ry. Co. 28 Minn. 103,107, 9 N.W. 575, 577, this court said:

"Whatever precautions a prudent management of the road, with respect to the public safety, would require, it is the duty of the company to take, though they may be in addition to those required by statute, or though there be no statutory requirement on the subject. The specification by statute of certain precautions to be taken is not to be construed as a license to the company to omit other precautions that may be necessary; nor does the silence of the statute as to any particular precaution exempt the company from the duty of taking it, if it be one which proper prudence requires."

It is quite obvious that when railroads first were constructed across highways and the only vehicles operated upon the highways were horse-drawn, there was no danger of the horse-drawn vehicle colliding with or being driven into railroad trains which were actually occupying crossings. The speed of the horse-drawn vehicles was such that they could always be stopped in ample time to prevent their running into a train. Moreover, the horses themselves, even at night, would see the obstruction and avoid a collision. Their position of advantage in front of the vehicle was insurance against their running into an obstacle. The only danger to horse-drawn vehicles was from being struck by approaching trains while they were passing over the crossing. No doubt at that time ordinary care would not require any warning to approaching drivers of the presence of a train other than its occupation of the crossing itself. The first statutes requiring signs to be erected to warn the users of the highway of the presence of the crossing were no doubt passed for the purpose of compelling the railroad companies to give warning of approaching trains. No more was necessary.

The situation has now quite obviously changed and with it the requirements of ordinary care. B. O. R. Co. v. Reeves (C. C. A.) 10 P.2d 329. So have the statutory requirements as I shall presently indicate. Now, according to statistics, something over one-fourth of the highway crossing accidents result from automobiles running into the sides of moving or standing trains. Any automobile driver experienced in country driving knows that until the direct rays of his lights actually strike the sides of freight cars a standing or moving freight train across a highway is not a conspicuous object at night. This is especially true if the railroad is slightly above the level of the approaching highway. The law requires the direct beams of automobile headlights to be cast below the height of 42 inches at a distance of 75 feet in front of an automobile. With the ordinary car this means that such direct beams must ultimately strike down to the level of the highway and that objects above that point are inconspicuous. If their color is such that it blends readily with the highway or into the horizon, the objects are very unlikely to receive timely recognition. Hence the statutory requirement of tail-lights, reflectors, and in some cases flares. This also indicates the reason that the highway department places its warning signals low enough to be seen by the direct rays of the headlights.

It is a matter of common knowledge that drivers of ordinary prudence travel at night at rates of speed which a few years ago would have been considered imprudent or even reckless. That this may be done with reasonable safety is due in large measure to the diligence of the highway department and of counties in placing signs which warn of any deviation from the normal situation. The diligent placing of such signs has led drivers of ordinary prudence to drive at rates of speed which but for the presence of such warnings would not be considered safe. The almost universal presence of these warning signs has given foundation for reasonably prudent drivers to expect them. This is a matter of common knowledge as well known to the railroad companies as to others, and the whole question before us resolves itself down to whether a driver of an automobile on a dark night must always travel with the expectation that at any moment a freight train may loom up across his path without other warning of its presence than its actual occupation of the entire highway. In other words, if defendant is right, a freight train occupying a railroad crossing is an exception to the general rule that warnings of obstructions may be expected. We have many statutory requirements for the protection of users of our highways. Scarcely one can be mentioned which would not be dictated by ordinary prudence in the absence of statute. Warnings of obstructions are the well-nigh universal rule. Are crossings wholly obstructed by freight trains to be the exception?

Under usual circumstances a driver at night should be prepared to stop within the range of the illumination cast by his lights. This rule, however, is not an absolute bar to recovery in all cases. If the object which obstructs the highway is of such a character that its color or height blends with the surroundings in such a way that it is inconspicuous even when the driver's lights are functioning properly, we have held that the question of the driver's care may be for the jury. Olson v. Purity Baking Co. 185 Minn. 571, 242 N.W. 283; Wicker v. North States Constr. Co. Inc. 183 Minn. 79,235 N.W. 630. In the case at bar the plaintiff's husband said in substance that the color of the train blended with the color of the road and the surroundings; that he did not observe the train until the direct rays of his lights struck the cars and revealed the train immediately in front of him. That may well be the common experience of drivers in the observation of freight trains.

The defendant was of course entitled to assume that people using the highway would conduct themselves in the manner that persons of ordinary prudence usually do, but if drivers in the exercise of such prudence might be exposed to collision with a freight train, defendant was bound, in the exercise of ordinary care, to warn such drivers of the presence of the railroad crossing. It need not, of course, do more than give effective warning of the crossing. I think in this case the record made it fairly a question for the jury whether the defendant should not at least have erected on the westerly side of its track a conspicuous sign indicating the presence of the crossing. The sign on the other side might have been well enough in the days of horses and buggies to warn of the possibility of approaching trains, but it was utterly futile as a warning to drivers approaching from the west if a freight train was standing or moving upon the crossing. I think that under the circumstances of this case the question of the defendant's negligence was at least one for the jury and that ordinary care might be said by them to require a warning sign. The evidence shows clearly that a sign similar to that which the company already had on the other side of the track, though of ancient design suitable to the days of horse-drawn vehicles, was much more readily seen and much more conspicuous than the presence of the train itself. I have carefully examined the authorities from other jurisdictions cited by the respondent. Most of them were cited in the Crosby case, 187 Minn. 263, 245 N.W. 31. I do not think them applicable to modern conditions and am not persuaded by their logic.

That the legislature has recognized the changing conditions and that warning signals are now calculated to prevent motor vehicles from colliding with trains is definitely indicated by L. 1925, c. 336. That chapter (not yet applicable to this crossing) requires a sign on each side of the track. It is obvious that if the statutory signs are only for the purpose of warning of the approach of trains, one conspicuous sign at a crossing on either side of the railroad would be sufficient.

The case of Ausen v. M. St. P. S. S. M. Ry. Co. 193 Minn. 316,258 N.W. 511, was, like the Crosby case, 187 Minn. 263,245 N.W. 31, one where there was a conspicuous crossing sign on the side from which the plaintiff was approaching; hence it was unnecessary to pass upon the question of whether ordinary care required the railroad to put up crossing signs on both sides of its track. This is the first case presenting that issue. Now this court has not only gone to the extent of holding that ordinary care does not require signs on both sides, but has reversed its former holdings that ordinary care may demand more than the statutory requirements. With that holding I am not in accord. I do not think the statutes referred to in the majority opinion forbid or relieve the railroad company from taking further precautions dictated by ordinary care.

The plaintiff was a passenger, and the negligence, if any, of her husband is not imputable to her. Whether or not the defendant was negligent was, in my opinion, a question for the jury.