I concur in the result for the reason that the court below properly limited the question of negligence so as to do away with any claim of inadequacy of signs at the involved crossing.
In its instructions it said that the defendant was "under no obligation to provide a watchman with a light or other means of warning the plaintiffs of the presence of the train upon the crossing * * * unless the situation there was extrahazardous because of peculiar and unusual circumstances arising out of the combination of the weather conditions, coupled with smoke or steam escaping from the engine on the passing track * * *" It then proceeded as follows: "In order to recover in this action, therefore, the plaintiffs must prove by a fair preponderance of the evidence: first, that the situation was extrahazardous because of peculiar and unusual circumstances arising out of the weather conditions, coupled with smoke and steam escaping from the engine on the passing track and the lack of lights showing or indicating the presence of the train on the crossing; second, that common prudence required a warning of the presence of the train to be given to approaching motorists; and third, that the company was negligent in not giving such warning. If all of these facts are proven, then the plaintiffs *Page 273 are entitled to recover compensation for the damages that they sustained as the result thereof, unless they were themselves negligent and their negligence contributed to the happening of the accident."
In its memorandum attached to the order here for review the court in commenting upon requirements of the statute and the orders of the railroad and warehouse commission respecting crossing signs said:
"Concededly there is nothing in any of these sources touching the present case. * * * The situation, according to the jury's finding, was extrahazardous, and one of defendant's own making."
And that this was the vital issue plaintiff in her brief clearly concedes:
"We do not question those cases cited by the defendant to the effect that one who drives his vehicle into a railroad train obscured by fog is guilty of negligence which is the sole proximate cause; both the railroad and the motorist must operate in a careful manner, having in mind this additional natural hazard. Neither do we question those cases to the effect that a motorist who drives his vehicle into smoke from a railroad train and strikes some object obscured thereby is guilty of negligence which is the sole proximate cause; railroad engines necessarily give off smoke and steam and under proper circumstances it may be permitted to drift across a highway; the smoke or steam can be seen and is its own warning." But in avoidance of what is here quoted, she proceeds thus: "The foggy condition obscured the drifting smoke and steam which in turn obscured the boxcars standing on the crossing. In this situation the railroad company gave no warning to the motorist, although its enginemen were in the cab and its brakemen were in the caboose; there was no light. It is clear that the boxcars on the highway would have been seen except for the smoke and steam obscuring them, and that the smoke and steam would have been seen except for the fog. * * *It was a trap made by the railroad company." (Italics supplied.) *Page 274
Therefore there can be no doubt that the facts in this case are not in any way similar to what was decided in Olson v. C. G. W. R. Co. 193 Minn. 533, 259 N.W. 70, and the other cases therein relied upon. That case involved the alleged lack of adequate crossing signs as a basis for liability. The same question was presented in the Licha case. Neither case is involved here.
Defendant having created, as the jury found, a dangerous situation, the resulting harm to plaintiff can well be said to be at least a concurring cause to her injuries. (The jury found for defendant in the husband's case; hence it logically follows that as to him it found contributory negligence.)
I can see nothing wrong about the result here reached and therefore concur therein.
I am authorized to say that Mr. Justice Holt concurs herein.
MR. JUSTICE STONE, because of illness, took no part in the consideration or decision of this case.