Missouri-Kansas-Texas Railroad Co. v. McFerrin

Mr. Justice Garwood

joined by Justice Culver concurring.

I agree with all the conclusions of the court except that which defines the statutory phrases, “plainly visible” and “in hazardous proximity” in terms of whether a person in the position of the plaintiff motorist would, in the exercise of reasonable care, have seen the train and appreciated its presence to be a hazard.

The statute says that the motorist must stop when an approaching train is plainly visible and in hazardous proximity. We say that the motorist must stop when in the exercise of reasonable care under the circumstances he should have seen the train and considered it to be a hazard.

Now obviously, as a matter of common law and common sense, if a motorist is on a collision course with a train which he reasonably ought to see and consider a hazard, he ought to stop. There is not, nor ever was, need of an act of the Legislature to establish or settle that simple fact. But what we say the statute means is just that: when a motorist obviously ought to stop, he must stop. I find it difficult to imagine a Legislature, and one composed largely of lawyers, making such a futile enactment, and then stating, as it does, in the emergency clause of the act that existing rules of the road are so outmoded as urgently to require change. The specification of the stopping area would not of itself render an otherwise futile enactment worth-while.

Of course, if an act or provision as written is confusing in actual practice or ambiguous within itself, and if courts are confronted with applying it, they have to do the best they can with it even to the point of adding considerable language to what the Legislature wrote. But I fail to see how the instant provision, as written, falls within that category.

The phrases “plainly visible” and “in hazardous proximity” seem to be rather ordinary ones that most people of average intelligence will understand wholly without reference to whether th particular motorist under all the circumstances should in the exercise of reasonable care have seen the train and appreciated the hazard. One will find every one of the words in question *92 defined in the dictionaries without reference whatsoever to the negligence or due care of persons under the circumstances.

If one hears in conversation or reads in a book that “the moon was plainly visible” or that “the falling aircraft was in hazardous proximity to the earth,” he has a quite clear idea of what is meant, without speculating about whether someone kept a “proper lookout” for the moon or, in the exercise of due care under the circumstances, would have appreciated that the aircraft was in danger of crashing.

Nor does the fact that these expressions are found in a statutory rule of conduct change their ordinary meaning. The law is full of more or less absolute rules and yet we have no great difficulty in applying them without changing their ordinary meaning in the manner which we now employ.

If the statute says the motorist shall stop when faced by a red traffic light, we do not feel. required to define “faced by a red traffic light,” still less to define it in terms of due care of the motorist under the circumstances. Such a standard is in a proper sense to be called a subjective one because, while involving also the standard of the hypothetical “reasonable man” it is actually applied to the particular motorist by reason of bringing in the circumstances of the particular case.

If the case presents special circumstances such as that, by reason of the presence of certain green lights put there by a a prankster alongside the red light, the motorist became confused, we would consider these circumstances by way of justification or excuse for the actual violation of the statutory injunction. We would not say that under the properly construed terms of the statute, the motorist was not faced with a red traffic light.

There is an important practical difference between the two approaches. When the motorist has failed to stop, which is usually the case in railroad crossing collisions, and his duty to stop under the statute has been established, it will usually be harder for him to justify his failure to stop than it would be for him to negative his duty to stop under the Court’s test for “plainly visible” and “in hazardous proximity.”

Under the more or less literal acceptance of the statute for which I contend, if the physical facts show, for example, a clear day with no impediment to vision between the train and *93 the automobile when the latter is at fifty feet or more from the track, plain visibility is established and so far as that condition is concerned, the duty to stop arises. It is in practice a much simpler matter for the railroad to establish this to the satisfaction of the jury than to procure a finding which expressly convicts the motorist of negligence for failure to keep a proper lookout. It is also, as a practical matter, simpler to procure a a finding that the train was in hazardous proximity by reason of the physical facts, including speed of the respective vehicles, than to procure one that explicitly convicts the motorist of negligence for failure to appreciate the hazard. The jury will not unnaturally be tempted to say in many instances that there was not time enough for the motorist to appreciate it, although in fact there was a serious hazard.

Nor is there anything arbitrary about a statutory intent to give the railroad such advantage — or less of a disadvantage— as the more literal interpretation involves. The only effect is to put the duty upon the motorist to stop and thereafter not to start again until he can safely do so. Even if clear visibility and hazardous proximity were legislatively presumed at every crossing for the purpose of requiring motorists to stop, it would not be extreme. We have stop signs at hundreds of thousands of street intersections in the state, although automobiles can quickly start, stop and maneuver to avoid collisions with each other, while trains, with their physical limitations and the burden of carrying the public or its goods according to a schedule, cannot quickly stop or start and cannot maneuver at all. A halfway measure which imposes less than an absolute duty to stop, but which puts a greater duty on the motorist in this connection than existed before, is not in the least arbitrary as against motorists or in favor of railroads. In fact, as already stated, such a legislative purpose seems more likely than one which would say in effect that whenever a motorist would be negligent by not stopping, he must stop.

No doubt an important motive of the measure was to cause motorists to approach a track at a lower speed than is generally employed, which would be a natural thing in view of the relatively much greater difficulty of stopping a train in an emergency and the economic impracticability of making trains creep slowly through areas where there are crossings. The slower the motorist is moving, obviously the better his opportunity to see and avoid what is plainly visible and in hazardous proximity at one side. If the motorist has in mind that this situation may arise when he is within as little as fifty feet from the track, *94 imposing on him the duty to stop within the next thirty-five feet, he will or should approach crossings at lower speed than he would probably do otherwise. But under the theory of the court in the instant case, it is quite possible that the very speed of the motorist (and of the train) in a clear case of hazardous proximity will cause the jury to find that there was no duty to stop because the motorist in the exercise of reasonable care need not have seen the train within the very brief time in which it was exposed to his view.

One can readily imagine the case of both the motorist and the train approaching the crossing at high speeds. If there should be an obstruction to vision between them at any point, there will be little time left for the motorist to see the train as it passes the obstruction. If the question is, not whether there was an unobstructed view of the train, but whether the motorist in the exercise of due care should have seen it, certainly the jury is going to take into consideration the brevity of his opportunity to see it, even though he may have been two hundred feet from the track when vision first became unobstructed. The duty of stopping is thus rendered more uncertain and correspondingly of less concern to motorists.

The foregoing view does not entail agreement with the proposition that “hazardous proximity” is established as a matter of law whenever a collision occurs. I quite agree with the court that such is not the case. On the other hand, I do not think it is, or could be, argued that the incorrectness of that proposition entails also the incorrectness of my view of the statutory words in question. If the train were two miles off when the motorist attempted to cross the track without stopping but stalled and was hit, obviously there is no room for application of the statutory provision on any theory.

The Indiana decision, 221 Ind. 367 , 47 N.E. 145 , 146, upon which tho court appears to place some reliance concerned a statute forbidding drivers of motor vehicles carrying explosive substances to “cross or drive upon the track or tracks of such railroad unless such person shall first bring such vehicle to a full stop, and, shall ascertain definitely that no train, car or engine is approaching such crossing and is in such close proximitty thereto as to create a hazard or danger of a collision.” As the opinion observes, there was “no evidence that he (the driver) did or did not take the steps required by the above statute b if ore driving upon the crossing” and that the defendants (railway company and others) “seek to invoke * * * *95 res ipsa loquitur. They assert that the collision could not have happened without a violation of the statute by the decedent and, therefore, that the fact of the occurrence conclusively established contributory negligence as a matter of law.” The court rejected this contention and held that the issue of “contributory negligence was for determination of the jury.”

The theory of the Court evidently was that the part of the statute requiring the driver to “ascertain definitely” that no train was approaching and in hazardous proximity constituted the crux of the case, and that such a provision should, for reasons of impractieality or perhaps unfairness, be in effect disregarded.

It seems to me that both the statute and facts in that case are importantly different from those here involved. In the first place the “ascertain definitely” duty is one which expressly relates both to the state of mind of the particular driver and the physical fact of the train’s proximity. In our statute even the part dealing with starting up after stopping is in much less strict language, while the part requiring the motorist to stop has no express reference at all to the judgment of the driver.

In the second place, as the opinion of the court correctly states, we have before us only the question of failure to stop, as to which we hold that the jury finding of no failure to stop was not necessarily wrong. The impractieality of enforcing a provision like the “ascertain definitely” part of the Indiana statute is thus not a relevant consideration.

In brief, the Indiana decision supra, holds that the bare fact of the collision did not establish contributory negligence of the driver as a matter of law by reason of the statute. Such a holding is at best but argumentatively relevant to the instant case, and apparently the court so regards it.

The cited New Hampshire case of Gendron v. Glidden, 84 N.H. 162 , 148 Atl. 465 , while involving a street intersection accident between two automobiles, seems more in point. The statute there required a driver approaching an intersection to “grant the right of way, at the point of intersection, to vehicles approaching from his right; provided, that such vehicles are arriving at the point of intersection at approximately the same instant.” Pub. Laws N.H. 1926, C. 90 Sec. 3.

*96 The trial court instructed the jury in effect that if the southbound car reached the intersection first, the right of way rule otherwise favoring the eastbound car to its right had no application, and the question was merely one of due care. This was held to be error, because in the view of the appellate court the effect of such an interpretation would be to cause automobiles to race for crossings, an unlikely legislative purpose. It was added that the word “arriving at the point of intersection at approximately the same instant” meant “whenever there is such relative proximity of the vehicles to the intersection that, upon appraisal of all the factors in the situation, it would appear to the man of ordinary prudence in his place that there is danger of a collision if he fails to yield the right of way.”

As our opinion points out, the court also held, regarding the eastbound (righthand) driver’s claim for judgment as a matter of law, that “In short, the invocation of the statute raises an issue of fact in the first instance, namely, whether or not a man of reasonable prudence in the position of the person approaching from the less favored direction would reasonably have concluded that he could pass the intersection without danger of collision.”

With all respect, the comparison of the words of the Legislature and the Court leaves one in some doubt as to whether the two speak English by the same rules. The net result appears to be that the statute accomplished nothing except to rewrite existing law in extraordinarily inadequate form.

Presumably our citation of this case will henceforth entail a corresponding construction of our own Art. 6701d, Secs. 71(a) and 71(b). Apparently our decision will also entail converting practically all of our elaborate rules of the road into simply a matter of due care on the part of the motorist concerned.

The cited Virginia case 187 Va. 181 , 46 S.E. 2d 61 , holds merely that a statutory traffic requirement to “first see that such movement can be made in safety” means, not that the driver in question was made an insurer of all consequences of his turn, but that, in effect, he had to use reasonable care under the circumstances. The statutory language is considerably milder than the “ascertain definitely” term in the Indiana case, 221 Ind. 367 , 47 N.E. 2d 145 , but the same distinctions from the present case apply. In the instant case, so far as the require* ment to stop is concerned, the statute makes no express refer* ence to the judgment off the driver. It particularly does noi say that he shall “see that” he can omit to stop without serious risls *97 of collision; nor do the physical facts of plain visibility or dangerous proximity of the train, nor the duty to stop, make him an insurer of the consequences of a collision. The requirement to stop is not the same as liability for an accident. If he failed to stop because another car ran into him from behind, or for any of countless other good reasons, he is justified in his technical violation of the statute.

In any event, the authority represented by the foregoing cases and the two Indiana federal decisions which applied the Indiana law, while eminently respectable, has little weight in point of numbers, and conceivably may yet turn out to be a minority view as applied to statutes and situations like those now before us. It need not control us, if we think, as I do, that better reason points the other way.

Opinion delivered May 23, 1956.

Rehearing overruled July 25 ,1956.