Callesen v. Grand Trunk Western R. Co.

Decision Date10 April 1989
Docket NumberDocket No. 92841
Citation437 N.W.2d 372,175 Mich.App. 252
PartiesRussell CALLESEN, Richard Callesen and Sandra Callesen, Plaintiffs-Appellees, Cross-Appellants, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant-Appellant, Cross-Appellee, and Western-Cullen-Hayes, Inc., and Association of American Railroads, Defendants-Cross Appellees.
CourtCourt of Appeal of Michigan — District of US

Goodman, Eden, Millender & Bedrosian by Joan Lovell and James Tuck, Detroit, for plaintiffs-appellees, cross-appellants.

Patterson & Patterson, Whitfield, Manikoff, Ternan & White, P.C. by Robert G. Waddell, Bloomfield Hills, for Grand Trunk Western R. Co.

Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C. by Richard J. Tonkin, Detroit, for Western-Cullen-Hayes, Inc. Bodman, Longley & Dahling by Carson C. Grunewald and David K. McLeod, and Foster, Meadows & Ballard by Richard A. Dietz, Detroit, for Association of American Railroads.

Before DOCTOROFF, P.J., and SHEPHERD and LAMB, * JJ.

SHEPHERD, Judge.

This case involves a collision between an automobile and a freight train at a railroad crossing protected by a flashing light signal. The automobile was driven by plaintiff Russell Callesen, who sustained serious injuries. Russell Callesen and his parents sued the railroad, Grand Trunk Western Railroad Company, and the manufacturer of the flashing light, Western-Cullen-Hayes, Inc., as well as the Association of American Railroads, which publishes information for its member railroads concerning crossing protections. The defendant railroad appeals as of right from a substantial jury verdict in favor of plaintiffs on negligence and implied warranty theories of liability, claiming instructional error and seeking an abolishment of the last clear chance doctrine in negligence actions. The plaintiffs cross-appeal from a judgment, notwithstanding the verdict, of no cause of action in favor of the defendant association. The jury's verdict of no cause of action in favor of the manufacturer has not been challenged.

We hold that the last clear chance doctrine has been abolished as a result of the adoption in Michigan of pure comparative negligence, but find that the use of the instruction premised on this doctrine was harmless. Both the jury verdict against the defendant railroad and the judgment notwithstanding the verdict in favor of the association are affirmed.

Trial evidence established that the collision occurred on December 12, 1978. Although Russell Callesen's injuries caused a loss of memory regarding the circumstances of the collision, there was evidence that his automobile was skidding as it approached the railroad crossing. The automobile struck the left side of the locomotive as the locomotive entered the crossing at thirty-five to forty miles per hour. One of plaintiffs' theories at trial was that the collision could have been avoided if the train's brakes were applied earlier inasmuch as the automobile allegedly would have cleared the tracks before the locomotive reached the crossing.

At the time of the collision, the locomotive was occupied by the engineer, brakeman and fireman. The engineer had responsibility for keeping a lookout on the right side of the train and, hence, did not see the collision. He recalled that it seemed like the locomotive hit a broken rail as it entered the crossing, and asked the brakeman and fireman if they had hit a broken rail. They told him that a car hit the train and to apply emergency braking. About seventeen to eighteen box cars went past the crossing before the emergency braking stopped the train.

The brakeman and fireman were the individuals responsible for keeping a lookout on the left side of the train where the collision occurred. Although they both saw the collision, they gave different accounts of the incident. The fireman saw the automobile about three seconds before the collision as it was skidding towards the crossing. He did not, however, recall telling the engineer to stop the train until the moment of impact. By contrast, the brakeman, who recalled the car skidding at a high rate of speed, testified that both he and the fireman told the engineer to stop the train before the collision and that he could feel the train slowing down before the actual impact.

Other trial evidence concerned the adequacy of the flashing light as a warning signal for motorists. Plaintiffs' theory relating to this evidence was that the flashing light signal was not aligned and maintained properly and that the roundel installed inside the unit was inadequate. A roundel is a lens positioned inside the flashing light unit; the lens bends the light to direct it down the road. There was testimony concerning a "hot spot" roundel that concentrates light into a small area and shoots it down the road to alert motorists in time to stop safely and that the hot spot roundel was superior to the roundel used by the defendant railroad. The railroad's liability was predicated on its selection and installation of the less superior roundel while the association's liability was predicated on its alleged failure to adequately disseminate the results of its research on various roundels to member railroads.

The jury found that the railroad and the association were negligent, but that fifty-five percent of the negligence was attributable to plaintiff Russell Callesen. The jury also found that the railroad breached an implied warranty relating to the fitness of the roundel for the crossing. The jury thereafter apportioned the fault between the defendants, attributing ninety-nine percent to the railroad and one percent to the association. The trial court vacated the jury verdict against the association and entered a judgment of no cause of action in its favor.

With regard to plaintiffs' negligence claim, the defendant railroad claims that the trial court erred by instructing the jury on the last clear chance doctrine. The railroad asserts that the doctrine was inapplicable to the facts of this case and, further, asks that we abolish the doctrine in view of the adoption of comparative negligence in Michigan.

We begin our analysis by considering whether the evidence warranted giving the instruction since it would not otherwise be necessary to consider whether the doctrine of last clear chance should be abolished. Zyskowski v. Habelmann, 150 Mich.App. 230, 388 N.W.2d 315 (1986), remanded for reconsideration on other grounds 429 Mich. 873, 414 N.W.2d 886 (1987). The instruction given was based on SJI2d 14.01, and it is not disputed that the instruction comported with the requirements for the last clear chance doctrine set forth in Zeni v. Anderson, 397 Mich. 117, 152-153, 243 N.W.2d 270 (1976). Specifically, the court instructed:

"Even if you decide the Plaintiff negligently subjected himself to the risk of hrm [sic] from the Defendants' negigence [sic], the Plaintiff may still recover for harm caused by the Defendants' negligence, if immediately preceding the harm, the Plaintiff was unable to avoid it by exercise of reasonable diligence and care and the Defendat [sic] was negligent in failing to use, with reasonable care, his existing opportunity to avoide [sic] the Plaintiff's harm when he knew of the Plaintiff's situation and realized or had reason to realize the peril involved in it or could have discovered the situation if he had exercised the diligence which was then his duty to the Plaintiff to exercise.

"Even if you decide the Plaintiff, by the exercise of reasonable diligence could have discovered the danger created by the Defendants' negligence in time to avoid harm to him, the Plaintiff can still recover if, A, the Defendant knew of the Plaintiff's situation, B, the Defendant realized that the Plaintiff was inattentive and therefore unlikely to discover his peril in time to avoid the harm and C, the Defendant was negligent after that in failing to use with reasonable care, his existing opportunity to avoid the harm.

"It is up to you to decide whether the Plaintiff negligently subjected himself to the risk of harm from the Defendants' negligence but was unable to avoid it by exercise of reasonable diligence and care or whether the Plaintiff could have discovered the danger created by the Defendants' negligence in time to avoid the harm, but failed to do so because of inattentiveness.

"Once you have decided which category the Plaintiff fits, if he fits in either one, you sould [sic] then consider whether the other conditions of liability are met...."

The defendant railroad argues that there is no evidence from which the jury could conclude that it had an existing opportunity to avoid the harm after discovering plaintiff's peril. See Wilson v. Chesapeake & O.R. Co., 118 Mich.App. 123, 132-133, 324 N.W.2d 552 (1982), lv. den. 417 Mich. 1044 (1983). We disagree. If the brakeman's testimony that the engineer was informed of the approaching automobile prior to impact is believed and the engineer's testimony that he did not apply the brakes until after impact is believed, then reasonable jurors could find that the brakes could have been applied before impact. Given the fact that the impact occurred at the front of the locomotive, there is also a factual question as to whether the train could have slowed enough for plaintiff to safely cross the track before its arrival. Hence, the evidence was sufficient to support the instruction.

We next address whether the trial court should have refused to give the standard jury instruction on the last clear chance doctrine in view of the adoption of comparative negligence in Michigan. Although the use of the standard jury instructions is encouraged, the trial court has a duty to determine if the instruction is applicable in the context of the case at hand and whether the instruction accurately states the applicable law. MCR 2.516(D)(2); Johnson v. Corbet, 423 Mich. 304, 326-327, 377...

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