Brinks v. CHESAPEAKE & OHIO RAILWAY COMPANY

• Decision Date: 29 July 1968
• Docket Number: No. 18034.,18034.
• Citation: 398 F.2d 889
• Parties: Benjamin J. BRINKS, Administrator of the Estate of Gertrude Ann Brinks, Deceased, Plaintiff-Appellant, v. CHESAPEAKE & OHIO RAILWAY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

398 F.2d 889 (1968)

Benjamin J. BRINKS, Administrator of the Estate of Gertrude Ann Brinks, Deceased, Plaintiff-Appellant, v. CHESAPEAKE & OHIO RAILWAY COMPANY, Defendant-Appellee.

No. 18034.

United States Court of Appeals Sixth Circuit.

July 29, 1968.

Wallson G. Knack, Grand Rapids, Mich. (Wallson G. Knack, Warner, Norcross & Judd, Grand Rapids, Mich., on the brief), for appellant.

Paul O. Strawhecker, Grand Rapids, Mich. (Paul O. Strawhecker, Grand Rapids, Mich., Robert A. Straub, Detroit, Mich., on the brief; H. Rhett Pinsky, Grand Rapids, Mich., of counsel), for appellee.

Before O'SULLIVAN and PHILLIPS, Circuit Judges, and CECIL, Senior Circuit Judge.

PHILLIPS, Circuit Judge.

Mrs. Gertrude Ann Brinks, a thirty-one year old housewife and mother of three children, was killed January 23, 1964, when the car which she was driving was struck by a Chesapeake & Ohio train. She drove her car onto the tracks directly into the path of the train. She had left dinner in the oven for her husband and children and was en route to the home of her mother-in-law at the time of the fatal accident.

Mrs. Brinks had no physical defects of any kind which might tend to impair her ability to drive an automobile. Her vision was normal. Her car was in good mechanical condition and the brakes were in working order. She was familiar with the railroad crossing, which was in open country. The accident occurred shortly after 4:00 p. m. in daylight. Visibility was good.

This action for wrongful death is brought by her husband as administrator. Jurisdiction is based upon diversity of citizenship. Michigan law controls.

The District Court let the case go to the jury, which returned a verdict of $46,000 against the railroad. After the verdict the District Court denied the railroad's motion for judgment n. o. v. Later the District Court set aside its denial of the motion for judgment n. o. v. and granted judgment in favor of the railroad. Plaintiff appeals.

To reverse the decision of the District Court plaintiff relies upon two alleged incidents of subsequent negligence on the part of the railroad: (1) failure to throw the emergency brake in time and (2) failure to blow the whistle.

The question on appeal is whether there was sufficient evidence to warrant submission of plaintiff's case to the jury on either of these two theories. The facts will be stated only to the extent necessary to dispose of this question.

A motion for judgment n. o. v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. 5 Moore, Federal Practice ¶ 50.07 (2d ed.).

In order to establish subsequent negligence under Michigan law the plaintiff must prove the following circumstances:

"That the plaintiff\'s negligence had put him in a position of peril; that such negligence thereafter ceased to operate as an efficient cause of the pleaded injury; that the defendant could and should have discovered the plaintiff\'s peril in time to avoid such injury by the employment of safe means at ready hand, and that the defendant failed to so discover and act as would a person exercising due care under like circumstances." Shafkind v. Kroll, 367 Mich. 42, 45-46, 116 N.W. 2d 58, 60.

The proof should be clear and convincing that the defendant discovered or should have discovered the plaintiff's peril by the exercise of ordinary care and diligence and by the use of the means at hand had time to avert the threatened injury. Davidson v. City of Detroit etc., 307 Mich. 420, 430, 12 N.W.2d 413.

Viewing the testimony in the light most favorable to the plaintiff, we conclude that there is no evidence that the railroad could have realized the peril of Mrs. Brinks in sufficient time to avoid the accident by applying the emergency brake. The only evidence of probative value is to the effect that when the railroad's fireman first saw Mrs. Brinks' automobile, the train was 200 feet from the crossing and Mrs. Brinks' vehicle was 150 feet from the same crossing. The evidence establishes that Mrs. Brinks could have stopped her automobile within 117 feet, some 33 feet before she reached the track. It is undisputed that retardation of the train would require that its emergency brake be thrown 264 feet before reaching the crossing.

Thus, from the time the fireman first saw the approaching vehicle, Mrs. Brinks could have stopped her car before reaching the crossing. The motion of the train could not have been retarded until it was 64 feet past the crossing.

The Michigan Supreme Court has held that there is no duty for a railroad train to reduce its speed until it realizes that an approaching vehicle will not stop.

In Buchthal v. New York Central R. R. Co., 334 Mich. 556, 562-563, 55 N.W.2d 92, 95, the Court said:

"Plaintiff contends that under the admitted conditions of good visibility the train crew, particularly the fireman and the engineer, charged with the duty of observing persons lawfully crossing the tracks and of maintaining a reasonable lookout, should have stopped the train when the car became visible. There was no duty upon the train crew to slow down the train or stop, even if they had seen the car. In Piskorowski v. Detroit, G. H. & M. R. Co., 121 Mich. 498, 80 N.W. 241, 80 Am.St.Rep. 518, we held that a hand-car crew was not negligent as to a pedestrian unless they realized that the traveler would not stop and the crew have a right to assume that he will stop. We have held that at a country crossing there is no reason to slacken speed unless danger is apparent.

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