Olson v. Duluth, Missabe Iron Range Ry. Co. , 213 Minn. 106 ( 1942 )

The evidence shows that plaintiff was unfamiliar with the locale. Just prior to the accident he drove at a moderate rate of speed of 25 to 30 miles per hour. After passing over the brow of a hill he descended into a low area, in which there was a pocket of heavy fog, just before reaching defendant's tracks. He says that he slowed down. He also testified positively, and there was no evidence to contradict him except inferences which might have been drawn contrary thereto from other evidence, that he was able to stop within the range of vision afforded by his lights. The reason which he gave for not stopping sooner was that he was surprised to see the train crossing the road in front of him through the fog and that it required about a second or so to realize the danger which confronted him. He immediately applied his brakes and turned to his right to avoid a collision. Under such circumstances, whether he was guilty of contributory negligence was a fact question.

1. Of course, contributory negligence is the failure on plaintiff's part to exercise due care for his own safety. If, as plaintiff claims, he could stop within the range of vision afforded by his lights, he was not guilty of contributory negligence. It was for the jury to determine whether that claim was true.

2. The rule that a driver of an automobile must drive at such a speed that he can stop within the range of his lights is not a hard and fast one. The rule was first announced in a case where the atmospheric conditions were clear and favorable to full and unobstructed view. Orrvar v. Morgan, 189 Minn. 306,249 N.W. 42. We held that where the driver's view was obstructed by atmospheric conditions such as snow and wind the rule was not applicable. Tully v. Flour City C. O. Co. 191 Minn. 84,253 N.W. 22. Other courts have adopted the same view. Morehouse v. City of Everett, 141 Wash. 399, 252 P. 157, 58 A.L.R. 1482 (fog); Devoto v. United A. T. Co. 128 Wash. 604, 223 P. 1050 (fog).

The rights of a railroad and the traveling public to the use of a highway at a grade crossing are reciprocal. Where the decedent crossed railroad tracks in front of an approaching train which he did not see because of "distracting circumstances," consisting of a dark and cloudy day with occasional snow flurries and smoke and steam emitted from a locomotive on a switching track and carried toward him by the wind, contributory negligence was held to be a fact question in Lawler v. M. St. P. S. S. M. Ry. Co. 129 Minn. 506,152 N.W. 882. Numerous cases involving similar situations are cited in Licha v. N. P. Ry. Co. 201 Minn. 427, 276 N.W. 813. Rintala v. D. W. P. Ry. Co. 159 Minn. 499, 199 N.W. 562, is not in point. There atmospheric conditions were clear and plaintiff had a clear and unobstructed view of the crossing, with which he was familiar, for a distance of over 500 feet.

3. Statutory provisions governing the rights and duties of motorists at railroad crossings control decision in such cases. Cleveland, C. C. St. L. Ry. Co. v. Gillespie,96 Ind. App. 535, 173 N.E. 708.

The question of contributory negligence in the instant case is controlled by the highway traffic regulation act, Mason St. 1940 Supp. §§ 2720-151 to 2720-294. Decision that plaintiff was guilty of contributory negligence as a matter of law is predicated upon a finding of fact here as a matter of law contrary to the finding of fact by the jury upon the trial. The finding here is based upon evidence that plaintiff was driving at so high a rate of speed that he could not stop within the range of his lights. The highway traffic regulation act prescribes not only the permissible rate of speed and the degree of care required of drivers of automobiles, but the effect of a violation as being contributory negligence. The act provides that it shall be the duty of the driver of an automobile to drive at a speed not greater than is reasonable and prudent under the conditions, having regard to the actual and potential hazards then existing, Id. § 2720-178(a), and to drive at an appropriate reduced rate of speed when approaching and crossing a railway grade crossing or when special hazardsexist by reason of weather conditions, Id. § 2720-178(c).

Although the majority does not label plaintiff's conduct as constituting violations of the statute, it does hold that plaintiff's violations of the statute in the respects mentioned are contributory negligence as a matter of law. This the court has no right to do. Id. § 2720-291(b) provides that in allcivil actions a violation of the highway traffic regulation act by any party shall not be negligence per se, but only primafacie evidence of negligence. Plainly, the statute makes contributory negligence in cases involving violations thereof a fact question for the jury, not one of law for the court. Fickling v. Nassif, 208 Minn. 538, 294 N.W. 848; Yien Tsiang v. Minneapolis St. Ry. Co. 213 Minn. 21, 4 N.W.2d 630.

By law the jury may be constituted the sole judge of the existence of contributory negligence and assumption of risk even in cases where, absent statute or constitutional provision, the court would hold that either or both defenses appear as a matter of law.

In C. R.I. P. Ry. Co. v. Cole, 251 U.S. 54, 40 S. Ct. 68,64 L. ed. 133, affirming Dickinson v. Cole, 74 Okla. 79,177 P. 570, it appeared that plaintiff's intestate "stepped upon the railroad track when a train was approaching in full view and was killed." The constitution of Oklahoma provides that in all cases the defenses of contributory negligence and assumption of risk shall be questions of fact and left to the jury. The state court held that, absent the constitutional provision, the deceased was guilty of contributory negligence as a matter of law, but that under the constitution the question was one for the jury. Plaintiff had a verdict. In affirming, Mr. Justice Holmes speaking for the court said that the legislature "may confer larger powers upon a jury than those that generally prevail. Provisions making the jury judges of the law as well as of the facts in proceedings for libel are common to England and some of the States, and the controversy with regard to their powers in matters of law more generally as illustrated in Sparf v. United States, 156 U.S. 51, 715,15 S. Ct. 273, 39 L. ed. 343 [10 Am. Crim. Rep. 168], and Georgia v. Brailsford, 3 Dall. [Pa.] 1, 4, 1 L. ed. 483, 484, shows that the notion is not a novelty. In the present instance the plaintiff in error cannot complain that its chance to prevail upon a certain ground is diminished when the ground might have been altogether removed."

Following the Cole case, the Arizona court, in a case arising under a provision of the constitution of Arizona similar to that of Oklahoma, said:

"The language of the provision is plain and unambiguous, and to our minds clearly indicates that the power or duty to finally and conclusively settle the question of contributory negligence or assumption of risk is, by its terms, transferred from the court to the jury. If this is not the force and effect of the provision, we can conceive of no reason why the framers of the Constitution should have adopted the measure. We thinkthat the evident purpose and intent of the provision is to makethe jury the sole arbiter of the existence or nonexistence ofcontributory negligence or assumption of risk in all actions for personal injuries." (Italics supplied.) Inspiration C. C. Co. v. Conwell, 21 Ariz. 480, 190 P. 88, 90. See Herron v. Southern P. Co. 283 U.S. 91, 51 S. Ct. 383, 75 L. ed. 857.

Section 2720-291(b) has the same effect as the constitutional provisions of Oklahoma and Arizona to which reference has been made. It constitutes the jury the sole arbiter to determine the existence or nonexistence of contributory negligence.

Where, as here, the statute explicitly provides that a violation of the statute shall be contributory negligence only if a jury says that it is, the court ought not to hold in a particular case that the act is contributory negligence as a matter of law where the jury has found that it is not contributory negligence as a matter of fact. It is for the legislature to prescribe the law and policy of the state. It is for us to give effect to the legislative will where it has been as clearly manifested as it is here.

If there is anything to the contrary in any of our prior decisions, including Nicholas v. Minnesota Milk Co. 212 Minn. 333,4 N.W.2d 84, we ought to arrest any tendency in that direction as being not only opposed to the free exercise of, but as an encroachment on, the power of the legislature to legislate on the question now before us. Why should the court want to perpetuate any rule of its own making as against the legislative action adopting and substituting a new and different rule? After all, what constitutes contributory negligence is in the last analysis a fact question. We may think that our judgment should prevail in a particular case; but if the legislature says that it should not we ought to abide by its will. "Judges have neither higher function, nor more pressing duty, than to ascertain and give full scope to declared legislative policy when within the competency of the enacting body." State ex rel. City of St. Paul v. M. St. P. S. S. M. Ry. Co. 190 Minn. 162, 251 N.W. 275, 277.