Beasley v. Grand Western R. Co., Docket No. 77-2225

• Court: Court of Appeal of Michigan (US)
• Citation: 90 Mich.App. 576,282 N.W.2d 401
• Docket Number: Docket No. 77-2225
• Parties: Oletta BEASLEY, Administratrix of the Estate of Jimmy Ray Beasley, Deceased, and Eva Mae Williams, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant-Appellee. 90 Mich.App. 576, 282 N.W.2d 401
• Decision Date: 06 June 1979

Page 401

282 N.W.2d 401

Oletta BEASLEY, Administratrix of the Estate of Jimmy Ray

Beasley, Deceased, and Eva Mae Williams, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant-Appellee.

Docket No. 77-2225.

90 Mich.App. 576, 282 N.W.2d 401

Court of Appeals of Michigan.

June 6, 1979.

Released for Publication Aug. 22, 1979.

[90 MICHAPP 579] Glotta, Adelman, Dinges, Davis, Middleton & Murphy by Robert J. Dinges, Detroit, for plaintiff-appellant.

Earl C. Opperthauser by Dennis W. Krakow, Detroit, for defendant-appellee.

Before RILEY, P. J., and J. H. GILLIS and MacKENZIE, JJ.

RILEY, Presiding Judge.

The facts in this automobile-train collision case are as follows:

On January 10, 1973, decedent, Jimmy Ray Beasley, Eva Mae Williams, and Wanda K. Catt, were visiting at plaintiff Williams' home in Montrose Township, Genesee County. At approximately 3:30 p. m., the parties entered into decedent's 1964 Chevrolet and left the Williams' premises. In doing so, it was necessary to travel over what plaintiffs characterize and argue is a public road and defendant a private driveway. This road/driveway is the only means of entering and exiting the Williams' property. It is approximately 12 feet wide and [90 MICHAPP 580] unpaved. At its western end, it terminates in an oval-shaped pattern by the Williams' home. At its eastern end, it stops where it intersects Orchard Street, which is a regularly maintained and paved street. Just west of and parallel to Orchard Street are railroad tracks owned and maintained by defendant, Grand Trunk Western Railroad Company.

As decedent and his companions were proceeding toward Orchard Street, one of defendant's trains was proceeding south along the railroad tracks. When the train was about 200 feet north of the intersection, decedent's car pulled onto the tracks and apparently came to a complete stop. The train, travelling at about 30 miles per hour, was unable to stop within the distance remaining. A collision occurred, with the ensuing wreckage carried some 450 feet from point of impact. Jimmy Ray Beasley, the driver of the vehicle, was killed, and the other two passengers seriously injured.

In October, 1973, Raymond Beasley, administrator of the estate of the decedent, Jimmy Ray Beasley, filed this wrongful death action against defendant, alleging negligence. In February, 1974, Raymond Beasley died and Oleta Beasley, mother of the decedent, was appointed successor administratrix and substituted as a party plaintiff. Plaintiff Eva Williams brings this action on her own behalf for injuries she sustained in the accident. Plaintiffs' complaint alleges that defendant was negligent, Inter alia, in that it failed to: (1) maintain a safe crossing and guard it with reasonable care, (2) give adequate warning of the approach of the train, and (3) maintain a clear view for crossing the railroad tracks. It was plaintiffs' theory that the vehicle and train arrived simultaneously and that Jimmy Ray Beasley, due to a lack of clear view, the absence of a train signal or whistle, [90 MICHAPP 581] and the icy and rutty condition of the road, found himself in a position of inextricable danger.

Defendant alleges that any injury plaintiffs may have sustained was due solely to, or at least was caused in part by, the negligence of the decedent, particularly decedent's failure to drive his vehicle at a speed reasonable and proper under the circumstances, heed defendant's train whistle and bell, make a proper observation for defendant's train, and, thereby, yield the right-of-way.

At the close of plaintiffs' proofs, defendant moved for a directed verdict as to both plaintiffs. The motion was denied as to Eva Mae Williams. The court reserved its ruling as to the estate of Jimmy Ray Beasley, subsequently granting the motion following defendant's case-in-chief.

The jury returned a verdict of no cause of action by plaintiff Williams against defendant. Both plaintiffs appeal as of right and raise a plethora of issues. We reverse as to both plaintiffs. The issues unnecessary to our present disposition, yet likely to reoccur upon retrial, are considered Seriatim in conjunction with those we deem controlling.

I. DID THE LOWER COURT ERR WHEN IT GRANTED DEFENDANT'S MOTION FOR A DIRECTED VERDICT UPON FINDING THAT THE DECEDENT JIMMY RAY BEASLEY WAS GUILTY OF CONTRIBUTORY NEGLIGENCE AS A MATTER OF LAW?

In granting the defendant's motion for a directed verdict at the close of the proofs, the lower court found that decedent had crossed the tracks several times on the day of the accident and that he knew the condition of the road and what precautions would be necessary for his safety. The court refused to consider the argument of plaintiffs' counsel that, because trees and shrubs were in the immediate vicinity of the railroad tracks, [90 MICHAPP 582] the decedent's automobile would have been only three or four feet from the tracks before decedent would have been in a position to view any oncoming train. The court rejected also plaintiffs' contention that the jury could reasonably infer from these circumstances that decedent would not have the requisite reaction time and stopping distance to avoid the accident after becoming aware of an oncoming train. The trial judge held that, because there was no direct testimony concerning these questions, they could not be inferred from the evidence presented at trial.

At one time, Michigan courts applied the "stop, look and listen" rule in railroad-automobile and automobile-pedestrian negligence cases. Under this rule, automobile drivers were guilty of contributory negligence as a matter of law if, when approaching a railroad track, they had not driven their automobiles very slowly or had not stopped and looked prior to crossing the railroad track. See Kun v. Detroit J & C R Co., 240 Mich. 598, 602, 216 N.W. 380 (1927); Baader v. Detroit, J & C R Co., 228 Mich. 104, 105-106, 199 N.W. 630 (1924). See also Hett v. Duffy, 346 Mich. 456, 459-460, 78 N.W.2d 284 (1956) (holding pedestrians guilty of contributory negligence in the absence of proof showing they had stopped and looked for oncoming traffic prior to crossing the street).

In McKinney v. Yelavich, 352 Mich. 687, 697-698, 90 N.W.2d 883 (1958), the Michigan Supreme Court criticized this rule and expressly abandoned it, stating that the proper standard for negligence was not some artificial rule like "stop, look and listen", but, rather was that of a reasonably prudent person acting under the same or similar circumstances. Thus, in the opinion of the Court:

" * * * (T)he question is not what the pedestrian [90 MICHAPP 583] could have seen, as a matter of physical fact, but what he should have seen in the exercise of due care."

The Court also considered the danger of crystallizing a general standard of conduct into unbending rules of law:

"We must guard against confusing general standards of care (E. g., the actions of a reasonably prudent man under the same or similar circumstances) with particular rules of conduct, sometimes called 'Specific ' standards (stop, look and listen; always watch the traffic light; keep observing the approaching side-road driver, et cetera). Conduct which is the epitome of care in some specific situations, under those specific circumstances, may be the essence of recklessness in others. It depends upon the balance of the circumstances." (Emphasis in original.) Id. at 699, 90 N.W.2d at 888-89.

Although an automobile-pedestrian case, the McKinney rationale was (and is) equally applicable to collisions at railroad crossings:

"The attainment, or lack of attainment, of the standard of due care can be predicated only upon the existence of certain facts.

"For example, under some circumstances a jury may be permitted to find, under proper instructions, that a failure to 'stop, look and listen' before crossing a railroad track amounted to a failure to exercise due care under the circumstances. If this finding is permitted to petrify into a hard and fast 'rule' (I. e., it is negligence Per se to fail to stop, look and listen under all circumstances before crossing a railroad track), absurd and unjust results will inevitably follow." Id. at 692, 90 N.W.2d at 885.

To these comments we add that directed verdicts, particularly in negligence actions, are viewed with disfavor. Cody v. Marcel Electric Co.,71 Mich.App. 714, 717, 248 N.W.2d 663 (1976), Lv. den. 399 Mich. 851 (1977). In considering a motion for directed verdict, the trial court is bound to [90 MICHAPP 584] view the evidence in a light most favorable to the nonmovant Armstrong v. LeBlanc, 395 Mich. 526, 532, 236 N.W.2d 419 (1975); Johnson v. Grand Trunk W. R. Co., 58 Mich.App. 708, 713, 228 N.W.2d 795 (1975). If, when viewed in this light, the facts are such that reasonable persons could honestly come to different conclusions, then the question is for the jury. Johnson, supra, at 713, 228 N.W.2d 795. In Kujawski v. Cohen, 56 Mich.App. 533, 535, 224 N.W.2d 908, 910 (1974), Lv. den. 394 Mich. 772 (1975), we stated that a directed verdict would be improper where there was any evidence competent and sufficient to support a jury verdict for the nonmovant party:

"The right to have a jury pass on questions of fact must be protected even when only 'scant' evidence is presented. McKinch v. Dixon, 391 Mich. 282, 215 N.W.2d 689 (1974)."

Bearing these points in mind, we then turn to the question of decedent's due care and the evidence presented in its support. In this regard, the following two questions became pertinent at trial: did defendant's train sound a whistle to warn of its approach to the crossing and was decedent's view of the railroad track so obstructed that he could not have seen the approach of the train?

Five witnesses testified on behalf of defendant that they, in fact, heard a train whistle. Six witnesses asserted that they heard no whistle nor any other advance warning prior to the accident. However, mere...