Ausen v. M. St. P. S. S. M. Ry. Co. , 193 Minn. 316 ( 1935 )

I concur in the result. I do so solely on the ground that ordinary care required no more warning than was here given by the conspicuous crossing sign. I also think the result in the Crosby case, 187 Minn. 263, 245 N.W. 31, was right. I do not, however, find myself in accord with the view that the signs required either by statute or by ordinary care at railroad crossings are solely to warn of approaching trains or that a standing train is under all circumstances sufficient warning of its presence. True, a statute requires warning of obstructions such as standing vehicles on a highway, but certainly, in the absence of such a statute, ordinary care would dictate like warnings. The decisions cited in the Crosby case holding that warning of railroad crossings is required solely to prevent travelers from getting onto a track and being there struck by a train are a survival of the thought applied to horse-drawn vehicles, where the slow speed of such vehicles gave adequate opportunity for them to stop for such obstructions as standing or passing trains.

Today it is a matter of common knowledge that automobiles are driven at night on our great, wide, straight highways at speeds which do not allow adequate time or space in which to stop for unusual objects such as freight trains completely obstructing the highway unless some warning of the possible or probable presence thereof is given, especially where, as in the case of such trains, the bodies of the cars are apt to be above the direct beams of the automobile lights, which the law requires to be projected below 42 inches at 75 feet from the vehicle. Recognizing this, our counties and state highway department place conspicuous warnings of all variations from the normal road. Drivers of ordinary prudence have grown to rely on the presence of such warnings. Certainly ordinary care does not require an automobile always to be driven in the expectation that a railroad train may suddenly and without warning loom up across the highway. To fail to recognize this fact is to apply horse and buggy law to a motor age and is a failure to recognize the common experience of mankind. Statistics disclose that 28 per cent of railroad crossing accidents result from vehicles being driven into the sides of moving or standing trains. A variety of circumstances may be suggested where persons driving with ordinary care might suddenly be confronted with a railroad crossing encumbered by a train. Obviously, ordinary care requires some warning of the presence of the crossing upon which long trains may be passing or standing. The luminous signs of the reflector type in common use at crossings and other places of danger are very effective warnings, and one placed at the outer edge of a railroad right of way would relieve the crossing of most of its hazards. In this case the owner of the tracks placed a large "buck" sign at a conspicuous place where approaching automobile lights must reveal it. As a matter of law under the circumstances I think ordinary care required no more.