Schulz v. Chicago, Milwaukee, St. Paul & Pacific Railroad
Schulz v. Chicago, Milwaukee, St. Paul & Pacific Railroad
Opinion of the Court
Sec. 192.29 (5), Stats., directs the warning which must be placed at every railway-highway crossing.
“Danger Signs. Every railroad corporation shall maintain wherever its track crosses a public highway or street and near such crossing a large signboard with the following inscription, painted in large letters on each side: ‘Look Out For Cars,’ in such manner as to be visible on the highway or street at least a hundred feet distant on each side of such crossing, except that after May 1, 1935, any such signs repainted, replaced, or newly erected shall bear the inscription ‘Railroad Crossing’ instead of the inscription ‘Look Out For Cars.’ ”
Photographs of the scene of the accident establish as a matter of law that this statutory duty was performed by the erection of the customary crossbucks bearing the words “Railroad Crossing.” The jury could not have found that the railroad’s warning to the public of the existence of this crossing was inadequate because of failure to comply with the statute.
The learned trial court charged the jury :
“In addition to the requirements made by statute for every railroad crossing, the railroad company may be required in the exercise of due care to take additional precautions or erect and maintain more adequate warning signs or devices at crossings over a public highway, which crossing is unusually dangerous.
“It is the duty of every railroad corporation to provide a reasonably adequate warning of a crossing to the users of the highway under conditions as they normally exist.
*545 “Before you can answer question 1 ‘Yes you must be satisfied by a clear preponderance of the credible evidence that the crossing in question under the general or customary conditions constituted or created an extraordinary hazard, or that it was an unusually dangerous crossing and that such fact was known or in the exercise of ordinary care should have been known to the railroad corporation and that it should have foreseen the danger resulting thereby to users of the highway.”
The railroad submits that its duty in respect to warning devices is to follow the statute and the orders, if any, of the public service commission and having here obeyed the statute and not having received any order from the commission it has performed its whole duty in this respect. We concede that if the commission has directed a crossing to be guarded in a particular manner and the railroad has done as directed, it is not required to go further to satisfy a jury’s idea of adequate protection. In our present case the commission had not taken notice of this crossing. By giving the commission jurisdiction over the field the legislature did not abolish the common-law duty of the railroad to take such additional precautions as the exercise of due care required until such time as the commission might exercise its jurisdiction over a particular crossing. With this reservation in favor of the exclusive jurisdiction of the public service commission over crossings when the commission has asserted jurisdiction, and with another exception to be mentioned, we consider the learned trial court’s instruction correctly states the law. Nevertheless, the instruction should not have been given, nor should the question to which it refers have been submitted to the jury, because it was inappropriate to the matter before the court.
Under normal conditions in the exercise of due care as to lookout, Mr. Schulz would be bound to observe the railroad crossing when he passed over it if not sooner, and having crossed the tracks he could not without negligence
At crossings where the view is obstructed or diverted so that although the traveler knows the crossing is there he is apt not to discover the approach of a train in time to avoid going on the tracks in front of it, some other device, usually a light or a bell or a moving signal, may be required; but such things are to herald the approach of a train which otherwise might remain unknown to the traveler until it was too late for him to save himself. Their purpose is not to show more clearly than the statutory sign where the tracks are located nor to replace it under conditions of bad visibility; otherwise it would be a breach of the railroad’s duty not to have them at all crossings for use when fog or storm interfere with vision. Neither courts, public service commission, nor statutes have imposed that burden on railroads and we conclude that such devices are not required for the purpose of showing the location of tracks, distinct from giving warning of the approach of a train. It is, of course, evident that Schulz, while stopped in a place of safety, knew that a train was coming and besides, the jury found that the railroad was not negligent in warning of its approach.
We conclude, then, that the storm which serves to excuse Mr. Schulz from what would otherwise be negligence in lookout and in management and control must also, as a
'The jury’s answers that the railroad was negligent in the matter of giving warning of the crossing to the public, in so far as this applies to Schulz, and that this was a cause of the accident are without support in the evidence.
The jury found that the railroad was operating its train at a speed which was negligent under the circumstances and this negligence was a cause of the accident. There is no statutory speed limit at the scene of this accident. The railroad’s own rule was for a speed not in excess of thirty-five miles per hour at that place. The trainmen testified its speed at the time of the collision was under thirty miles per hour and a record,made by a mechanical device, which the railroad record keeper testified showed the speed of this train at this time, corroborated their testimony. One of the plaintiff’s witnesses saw the collision from the Necedah depot, approximately one hundred eighty feet south of the crossing. His testimony was: “I imagine it [the train] was going about forty miles an hour.” He also testified that he heard one of the trainmen say to the engineer that the train was going too fast for the weather conditions. The evidence of negligence in respect to the speed of the train is certainly very weak and it may be doubted whether it affords support to the finding of negligence. However that may be, the question of causation remains and we find no evidence upon which to sustain the finding that the actual speed was a cause of the accident. The jury did not find how fast the train was running nor what would have been a safe speed and the record tells us no more than that a witness “imagined” it may have been going forty miles per hour. It seems to us
In its instruction already quoted, the learned trial court charged that the plaintiff must show certain facts “by a clear preponderance of the credible evidence.” This quantum of proof was unduly favorable to the defendant. See Bengston v. Estes, post, p. 595, 51 N. W. (2d) 539. Since the answer was favorable to the plaintiff no prejudice resulted from the language used but the instruction is defective in that respect.
By the Court. — Judgment reversed and cause remanded with instructions to dismiss the complaint.
Reference
- Full Case Name
- Schulz v. Chicago, Milwaukee, St. Paul & Pacific Railroad Company
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- Published