Engstrom v. Canadian Northern Railway Co.

July 21, 1922. Quinn, J. Action to recover for the death, by wrongful act, of respondent’s intestate, Neis Engstrom, and for damages to his automobile. At the close of the testimony, appellant’s motion for a directed verdict was denied. The jury returned a verdict for damages to' the automobile, but awarded nothing on account of the death of respondent’s intestate. From a judgment entered upon the verdict for damages to the automobile, this appeal was taken. Defendants’ track extends north and south through the village of Warroad, and Lake street crosses it at right angles. There is a gradual rise of about 3 or 4 feet in the street as the track is approached from the west. The view to the north and south is unobstructed from this grade, so that a train can be seen in either direction for a considerable distance. Mary Moody testified on behalf of the plaintiff that she was in the rear seat of the Engstrom auto and that, after crossing the bridge, it turned east on Lake street; that as they were approaching the crossing Engstrom stopped the car and asked her where she wanted to get off, then started ahead slowly; that as they started she observed a string of cars and a locomotive upon the track; that as the auto reached the rise in the street she saw the brakeman hanging on the northwest corner of the car that struck the auto and that he hallooed at them; that as the auto approached the track it turned to the north, and the corner of a stock car struck it, causing the damage complained of; and that the bell did not ring and the whistle did not sound. There was other testimony that the bell did not ring and the whistle was not sounded. [48] The witness O’Donnell testified that he was brakeman on the train; that they were switching at the time in question; that he was at the crossing at the time; that two automobiles stopped on the west side of the track; that as the train pulled south across the street he signaled the drivers of the autos to cross the track, which they did; that he then signaled the train to stop and looked in both directions to see if there was any traffic approaching and saw none; that he then signaled the engineer to back up over the crossing, which he proceeded to do; that he then saw an automobile about 150 feet to the west, which proved to be the car Engstrom was driving; that he signaled the driver to stop, and, as the auto reached the rise in the street, he waived and hallooed for him to stop, but he did not heed the warning; that, as the auto came up the grade, he gave the engineer the “wash-out,” a short stop signal, and continued to signal and halloo at the auto driver to stop; that the engineer gave three short blasts of the whistle and proceeded to stop the train; that the auto, as it reached the track, swerved to the north and was struck by the corner of the cattle car and completely demolished, Engstrom and the man by his side killed, and Mrs. Moody injured. O’Donnell’s testimony was corroborated in the main by several other witnesses. It is plain from a reading of the record that the train was in clear view of the driver of the auto while it was ascending the grade in the street for some 30 or 40 feet before reaching the track, that his auto was going at less than 8 miles an hour, and that he could have stopped it within a very few feet. There is no testimony in the record to support the claim that the Engstrom car was at the crossing when the brakeman signaled the first two autos to cross the track. There is no proof but that O’Donnell was at the crossing at the fatal time. It is conceded that he was there only a few moments before when he signaled the two autos across, and the drivers of those vehicles corroborate O’Donnell’s testimony in that respect. We are unable to conceive of anything more that a flagman or a gate could do to warn the driver of the dangerous situation than the brakeman did. We know of no presumption that could overcome the undisputed situation. The jury based its finding of negligence squarely upon the fact that there was no gate or flagman stationed [49] at the crossing. It returned a statement with the verdict to the effect that defendant was negligent in no other respect. As stated in the case of Lang v. Northern Pacific Ry. Co. 118 Minn. 68, 186 N. W. 297, railroad crossings are plac.es of such impending danger that one about to cross may not wholly rely upon the invitation of a flagman, but must use his own senses to ascertain the approach of trains. Four witnesses other than the braheman testified as to his waving and shouting. Mrs. Stone testified that she was upon the north walk to the west of the crossing immediately before the accident, that she crossed the track and then went over to the south walk on the east side, when she heard the shouting, looked back, saw the auto coming up the rise, heard three blasts of the whistle and the bell ring, and then saw the impact. The witnesses Hoyez and Wietmeier testified that they approached the crossing from the west a few minutes before the accident; that, as the train pulled across the street to the south, there was a brakeman hanging on the rear car and another at the crossing; that the latter gave them a signal to cross the track, which they did; that they drove east about a block and stopped when the accident occurred. The record discloses that the jury found that defendant was negligent in not having a flagman, gates or other appliances at the crossing to warn travelers of danger, but that it was negligent in no other way that contributed to the accident. The presumption that deceased used due care is destroyed when it appears that if he had looked and listened he must have known of the danger. We cannot escape the conclusion that deceased contributed to the accident and that he was guilty of contributory negligence as a matter of law. Reversed.