Turner v. Minneapolis, St. P. S.S.M. Ry. Co. , 164 Minn. 335 ( 1925 )

I fail to discover any basis for distinguishing this from the Rintala and other cases wherein it was held that a chauffeur who failed to take the obviously necessary precaution and so got himself run into by a train, in clear daylight and the absence of distracting circumstances, was guilty of contributory negligence.

Consider again the position of an automobile driver approaching a railroad crossing. His paramount duty, his only one for the moment, is to exercise every reasonable precaution for the safety of himself and his passengers if any, not to mention the property and passengers of the railroad. If we assume daylight conditions and eliminate distracting circumstances, and we must for present purposes, how comes it that you may say, as the majority do, that rational minds, functioning judicially, can differ and any of them hold the driver innocent of negligence?

There were no distracting circumstances here. There was an obstruction to view which increased rather than decreased the necessity for precaution. So far we agree. We differ only on the question whether others may in fairness and reason disagree.

There is no rule requiring in every case the stopping of an automobile or other vehicle approaching a crossing. The so-called "stop, look and listen" rule simply demands alert and efficient exercise of the faculties and a stop only when the senses of sight and hearing cannot be effectively exercised otherwise. In the case of such visual obstruction as there was in this case, warned of the crossing, the ordinarily prudent driver will stop and delay his crossing until his sight or hearing or both assure that no train is approaching. How there can be unbiased or sensible denial of that statement or disagreement with it, I fail to understand. Yet it is upon the assumption of the possibility of such disagreement that this case has been decided by a bare majority of the court. The whole case has been thus accurately summarized by one of my associates:

"A person killed while driving over a railroad crossing on a clear day, who was familiar with the crossing, who, by reason of box cars standing on a side track, was unable to obtain a clear view of the tracks, seven in number, over which he was about to pass, who could have reduced the speed of his car or brought it to a stop before entering the zone of danger and who could have exercised his sense of sight effectively had he done so, is chargeable with contributory negligence if he proceeds over the crossing at a speed of six or seven miles an hour and reaches a point where he is in danger of being struck by an approaching train before he has a clear view of the track on which it is approaching."

The argument made at the bar that such a holding as that in the Rintala case denies the right of trial by jury fails either to convince or scare me. One obstacle to conviction is my notion that juries must function, not as partisans or the instruments of sympathy or passion, but judicially and under restraint of law. Trial by jury is not a trial by 12 but by 15 individuals, all sworn to be governed by law. To deprive the judge of all power (as I think we have in this case), is equivalent to dispensing with him. Yet "to dispense with either," judge or jury, is to "impinge" on the right of trial by judge and jury, as known to the common law and protected by our constitutional guaranties, in support of which so much vociferous elocution is frequently expended upon the assumption that it is a right to trial by jury alone, unhindered by the appropriate legal restraints which function through the "power of direction and superintendence" vested in the judge. Slocum v. N.Y. Life Ins. Co. 228 U.S. 364,33 Sup. Ct. 523, 57 L. ed. 879, Ann. Cas. 1914D, 1029. It is only by a convenient deletion that we have come to refer to it as trial by jury instead of trial by judge and jury.

The judge is more than a mere presiding officer and his duty. where there is no room for rational and unbiased disagreement concerning facts, is to make the law control. In like fashion, courts of appeal have something more to do than review the procedural phases of a trial. If a plain rule of law has been plainly violated, its duty is to correct the error.

Personally, I disapprove of contributory negligence as a bar to recovery but it is the law and simple judicial duty to enforce it. I think it clearly apparent in this case. If it is not so considered, then obstruction of the vision of an automobilist, injured in daylight at a railroad crossing, is in effect made the means of reducing rather than increasing the care required of him. That result, while not intended, seems obvious and because it seems to me contrary to the plain sense of the situation, I disapprove of it, and decline to join in any invitation to make this jurisdiction the favored place for the trial of crossing accident cases, wherever they may arise and however plain it may be that due precaution on the part of the driver would have prevented casualty.

It relieves me of some embarrassment, an uncomfortable amount of which remains however, to align myself with the majority of the supreme court of Wisconsin and to concur in the view expressed in Roth v. C.M. St. P. Ry. Co. 185 Wis. 580,201 N.W. 810, that "in such a situation" of obstructed view "it becomes necessary, in order that his vision may be properly exercised" for the driver of the automobile "to slow up his speed or stop his machine. That is the care which the law imposes upon him. He cannot blindly proceed on the railroad track, where trains may be operated at any time, without having complied with these essential and necessary precautions."

Putting aside for the moment its legal aspect, how can the plain sense of the problem be better put than in the following language from Glick v. Cumberland W. Elec. Ry. Co. 124 Md. 308,92 A. 778.

"That a railroad track is a signal of danger, and that one attempting to cross it must, in order to avoid the imputation of negligence, first look and listen, and, if the view be obstructed, stop, look and listen for an approaching car, is a principle too firmly rooted * * * to admit of any further question. It expresses the fixed standard of necessary caution and care, and has for its object the protection not only of those who travel on the public roads but also those who require the service of steam and electric cars."

See also Craig v. Pennsylvania R. Co. 243 Pa. St. 455, 90 A. 135, in which it was held that where the view of the track is obstructed it is the duty of the approaching automobilist to stop at a point where looking will be effective.

We are not troubled here with any border line circumstances. This was no blind or seldom used crossing; no spur or single track proposition. Here were seven tracks and obvious to one approaching them even for the first time were all the hazards of both main line and switching operations. So it is unusually plain that due care required an efficient exercise of both sight and hearing. It is too clear for reasonable argument that in this case an efficient exercise of those senses by the driver would have prevented the collision. Obviously they could not have been efficiently exercised without a stop. Hence, the failure to stop was negligence. If there has been any explanation of how reasonable minds, approaching the question from any unbiased standpoint, can differ, or offer any reasonable basis for such difference, I fail to find it in the majority opinion.

True, there was to start with the presumption of due care. But presumptions have no place in the presence of undisputed facts and conclusions of fact. Both are so far present here as to put out of the case entirely the presumption of due care.