Schuknecht v. CHICAGO, M., ST. P. & PR CO.

South Dakota Supreme Court

Schuknecht v. CHICAGO, M., ST. P. & PR CO.

48 N.W.2d 917, 74 S.D. 61, 1951 S.D. LEXIS 14

CourtSouth Dakota Supreme Court

DecidedAugust 2, 1951

DocketFile 9090

StatusPublished

Cited by11 cases

This text of 48 N.W.2d 917 (Schuknecht v. CHICAGO, M., ST. P. & PR CO.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schuknecht v. CHICAGO, M., ST. P. & PR CO., 48 N.W.2d 917, 74 S.D. 61, 1951 S.D. LEXIS 14 (S.D. 1951).

Pincite

Opinion

ROBERTS, J.

This is an action brought by the widow and administratrix of the estate of her deceased husband, Fred C. Schuknecht, against the Chicago, Milwaukee, St. Paul and Pacific Railroad Company to recover damages for his death caused by a collision at a railroad crossing between an automobile driven by plaintiff’s husband and a passenger train operated by the defendant company. The engineer of the train involved in the accident was joined as a party defendant.

As grounds for recovery plaintiff alleged that death “was directly and proximately caused by the negligence of the defendants above named, and each of them, in that at the time and place of said collision no warning signal was given, either by whistle or bell, to warn deceased of the approach of said train, and defendants failed to operate said train with due care and caution at the time and place in question, in that no lookout was maintained, and due care and caution for the safety of travelers upon the highway was not exercised by them.” The statute, SDC 52.0924, required the engineer to ring the bell or sound the whistle a distance of 80 rods from the crossing and to continue the ringing of the bell or sounding of the whistle until the crossing was reached.

Defendants answered separately admitting the occurrence of the collision, but denying that they were in any respect negligent and charging deceased with want of ordinary care which caused or at least contributed to the accident.

The case was tried to a jury and a verdict was returned for plaintiff upon which judgment was entered. Defendants appeal.

The question'presented for determination on appeal is whether plaintiff’s intestate was guilty of contributory negligence as a matter' of law. This question was raised in the trial court by motions for directed verdict at the close of plaintiff’s case and again at the close of all the evidence and by motion for judgment notwithstanding the verdict. In reviewing the evidence to determine whether the *65 court erred in refusing to direct a verdict, it is elementary that we must accept the evidence in the light most favorable to plaintiff and accord her the benefit of all reasonable inferences which may be drawn therefrom. Johnson v. Chicago & N. W. Ry. Co., 71 S. D. 132, 22 N.W.2d 725; Haase v. Willers Truck Service, Inc., 72 S. D. 353, 34 N.W.2d 313. We accept for the purpose of this appeal plaintiff’s evidence as sufficient to establish her claim of negligence on the part of defendants. It is not necessary to detail the evidence as to the negligence of the defendants.

The accident occurred about 11:30 o’clock in the morning of November 24, 1947, at the intersection of defendant company’s railroad track and a graveled highway, known as the Tea-Beresford highway, near Lennox, South Dakota. At this point the highway runs north and south. The railroad track does not cross at right angles, but runs in a southeasterly and northwesterly direction. The track intersects the highway at an angle of about 15° south of due east and north of due west. Decedent approached the crossing from the north driving a Chevrolet coupe and was struck by a westbound passenger train and was instantly killed. The train consisted of a Diesel electric locomotive and four cars. The speed of the train was estimated at 50 miles per hour. There was no eye witness to the accident.

It is the settled law of this state that it is the duty of an automobile driver approaching a railroad crossing to look and listen where looking and listening will be effective and that his failure to do so, without reasonable excuse therefor, is contributory negligence as a matter of law. Buboltz v. Chicago, M. & St. P. Ry. Co., 47 S. D. 512, 199 N. W. 782; Dean v. Chicago, R. I. & P. Ry. Co., 51 S. D. 233, 213 N. W. 6. The failure of an engineer to give statutory signals does not relieve a motorist approaching a railroad crossing of that duty. Plucker v. Chicago, M. & St. P. Ry. Co., 52 S. D. 554, 219 N.W. 254.

Section 44.0305 reads as follows: “The State Highway Commission is hereby authorized to designate particularly dangerous grade crossings of steam or interurban railways by highways and to erect signs thereat notifying drivers of vehicles upon any such highways to come to a complete *66 stop before crossing such railway tracks, and whenever any such crossing is so designated and signposted it shall be unlawful for the driver of any vehicle to fail to stop within fifty feet but not less than ten feet from such railway tracks before traversing such crossing.”

It will be observed that this statute has imposed a duty in addition to those of the common law upon a driver of a vehicle approaching certain railroad crossings. It supplements and does not do away with the exercise of due care in other respects. SDC 44.0304. It is the duty of a driver to stop, as well as look and listen, before going on a crossing designated as a stop crossing.

Where no evidence of the conduct of a decedent, either direct or circumstanial, appears, there is in death cases the presumption that he, acting on the instinct of self preservation, was in the exercise of due care. Whaley v. Vidal, 27 S. D. 627, 132 N.W. 242. This presumption, like other presumptions, disappears when evidence is introduced from which facts may be found. It does not remain to create an issue of fact as against such evidence. The presumption may be rebutted by direct or circumstantial evidence to the contrary. Circumstances, in other words, may be sufficient to present an issue of fact for the jury or to demonstrate the existence of contributory negligence as a matter of law. McKiver v. Theo. Hamm Brewing Co., 67 S. D. 613, 297 N. W. 445.

The crossing where the accident in controversy occurred is in an open country. The railroad track is elevated somewhat at the point of the crossing and for some distance east thereof and when a traveler on the highway approaching from the north reaches a point 1200 feet from the crossing he has an unobstructed view to the east for a distance of at least a half mile and this condition remains until he has passed over the crossing. There were the customary cross-arm warning signs and the crossing having been designated as a stop crossing there were also the usual stop signs. In this connection there is reproduced herewith exhibits 7 and 13.

Exhibit 7 is a photograph taken from a point about 200 feet' north of the crossing. The other photograph was

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