Bishop v. New York Cent. R. Co.

• Decision Date: 17 May 1957
• Docket Number: No. 4,4
• Citation: 348 Mich. 345,83 N.W.2d 278
• Parties: Jacob L. BISHOP and Citizen's Insurance Company of New Jersey, a New Jersey corporation, assignee of Jacob L. Bishop, Plaintiffs and Appellees, v. The NEW YORK CENTRAL RAILROAD COMPANY, a Michigan corporation, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 278

83 N.W.2d 278

348 Mich. 345

Jacob L. BISHOP and Citizen's Insurance Company of New

Jersey, a New Jersey corporation, assignee of

Jacob L. Bishop, Plaintiffs and Appellees, v. The NEW YORK CENTRAL RAILROAD COMPANY, a Michigan

corporation, Defendant and Appellant.

No. 4.

Supreme Court of Michigan.

May 17, 1957.

Seelye, Kelley & Joseph, Lansing, for defendant and appellant, George H. Wyatt, Detroit, of counsel.

Gregg, Glassen, Parr & Rhead, H. W. Glassen, Lansing, for plaintiffs and appellees.

Before the Entire Bench, except BOYLES, J.

EDWARDS, Justice.

In this case, otherwise important only to the parties to the extent of $8,000, there is involved the right of trial by jury. Hence we approach it with the care and reverence which the age of the common law jury and its great historic and continuing contribution to justice both demand.

'A jury trial is a proceeding in which the jurors are the judges of the facts and the court is the judge of the law.' 31 Am.Jur., Jury, § 2, p. 550.

'The right to jury trial is immemorial. It was brought from England to this country by the colonists, and it has become a part of the birthright of every free man. It is a right which is justly dear to the American people, and one which is expressly guaranteed by the Federal Constitution and by the Constitutions of the several States. In Magna Charta, the basic principle of the right to jury trial is more than once insisted on as the great bulwark of English liberties.' 31 Am.Jur., Jury, § 3, p. 552.

In the instant case the plaintiffs asked for and received a trial by a jury of their peers. The jury by its general verdict answered several questions in plaintiffs' favor. As to one of them pertaining to contributory negligence, we are here asked to find that there was no issue of fact for jury decision and that as a matter of law the plaintiff was guilty of negligence which contributed as a proximate cause to the happening of the accident. Defendant's appeal urges that the trial judge was in error in failing to take this question from the jury or in failing to render judgment for the defendant notwithstanding the verdict of the jury.

With such motions before us for review we recite the facts from a point of view favorable to plaintiffs since apparently that is the view the jury as trier of the facts held to be the truth. Canning v. Cunningham, 322 Mich. 182, 33 N.W.2d 752; Grover v. Simons, 342 Mich. 480, 70 N.W.2d 775.

Plaintiff Bishop late on the night in question was driving home with his wife traveling east on a 4-lane street in the city of Lansing and reached the Shiawassee street--New York Central railroad crossing. The automatic grade-crossing gate was down. Flasher lights were working and a gong was ringing. Plaintiff stopped his car in line behind another and waited 9 to 10 minutes. A freight train eventually passed. The gate went up. The lights stopped flashing. The gong stopped ringing. The car ahead started up. Plaintiff did likewise after looking to his right and seeking nothing coming. He then drove across 3 tracks of the crossing and on the 4th was struck by a slow-moving freight train coming toward him from his right. He testified he had not looked again after he started across until just before the moment of impact.

The train which struck plaintiff was a switch engine which at the time was backing up with a string of loaded coal cars in tow.

Plaintiff was actually struck by the tender of the locomotive which had a 16-inch light affixed thereon.

Defendant's exhibits 1 and 4 are pictures of the scene of this accident. They show a railroad building built almost up to the sidewalk line and extending toward the crossing up to a line parallel to the automatic gate. They clearly portray a blind crossing up to the point of actual entrance onto the tracks.

Bearing also upon the problem of plaintiff's opportunity to observe is the following testimony from the gate tender (who controlled this gate for switching operations only) and who had just raised the gate after passage of the previous freight train:

'I heard the train reverse and then the engineer started to ring the bell and I put the gates down. I knew he was coming back from the noise, rather than from looking at him. I was located just about parallel to this gate, maybe set back a wee bit. From where I am looking down, it is kind of hard to tell whether he was coming back or not. There was a light on the train. Looking at the light you can hardly judge the speed of the train. It's hard to tell which way the car is going as a matter of fact. I knew he was coming back because the bell was going. When they ring the bell, that is a signal he is coming across, so I did that I thought was proper and released the gates.

Plaintiff's testimony apparently accepted by the jury was that he did not see the gate start down. Plaintiff also testified:

'In other words, when I am at those protected crossing gates, and they raise those gates, and the traffic begins moving, in other words, when they raise those gates and the lights quit blinking and the traffic starts moving, to me it indicates an all-clear sign, a signal to me.'

With these facts in mind our question is, cWas there evidence from which this jury could have found plaintiff free from negligence which contributed as a proximate cause to the happening of this accident?'

The trial judge in dealing with defendant's motion for a judgment non obstante veredicto said upon this point:

'It is contended in that respect that plaintiffs offered no proofs showing freedom from contributory negligence, and further that plaintiff Bishop was guilty of contributory negligence as a matter of law. At a protected crossing an approaching traveler is entitled to place some reliance upon the indication of safety which the silence of the signals implies, and the degree of care required of one approaching a crossing under such circumstances is only that which an ordinarily prudent man would use under such circumstances. Whether proper care has been exercised under such circumstances is ordinarily a jury question but not necessarily so. It depends upon the circumstances of the particular case. See Lockett v. Grand Trunk W. R. Co., 272 Mich. at p[age] 223 . Here when plaintiff Bishop approached the crossing the gates were down. He stopped and then they were raised and he then proceeded to cross without observation to his right. His car was struck by a slow moving freight approaching from his right. We believe the act of raising the gates clearly distinguishes this case on the facts from any of the cases cited by defendant, and further that such act raised a question of fact for the jury as to whether plaintiff Bishop acted as a reasonably prudent person would have acted under the same circumstances.'

We agree with the trial judge that the facts in this case are plainly distinguishable from the line of Michigan cases cited by the defendant and relied on in Justice KELLY'S opinion.

This was a protected crossing where by statute and order of the Michigan public service commission defendant was required to maintain and operate safety gates for the specific protection of the public. C.L.1948, § 466.2 et seq. (Stat.Ann. § 22,261 et seq.)

Our Michigan courts from the earliest times have distinguished cases involving protected crossings from unprotected crossings. Very much in point in our instant situation are the words of Justice McGrath in Evans v. Lake Shore & M. S. Railroad Co., 88 Mich. 442, 446, 50 N.W. 386, 387, 14 L.R.A. 223:

'The testimony tended to show that the gate-man had up to this time been present at his post, and that usually, when trains were approaching, the gate was closed, or dropped across the street-car tracks. The gate-keeper was clearly negligent in leaving his post, knowing that the engine was approaching the crossing, without closing the gate, or giving some signal of danger. It has been frequently held that when gates are provided the public have a right, the gates being open, to presume, in the absence of knowledge to the contrary, that the gate-men were properly discharging their duties, and that it was not negligence on their part to act on the presumption that they were not exposed to a danger which could only arise from a disregard of their duties by the gatemen. Glushing v. Sharp, 96 N.Y. 676; Cleveland, C., C. & I. Railway Co. v. Schneider, 45 Ohio St. 678, 17 N.E. 321.'

See, also, Richmond v. Chicago & W. M. Railway Co., 87 Mich. 374, 49 N.W. 621.

In more recent years the same general holding has been reiterated repeatedly by this Court. Thus Justice Clark, writing in relation to a pedestrian-railroad accident where the opportunity for observation was far greater than that available to the present plaintiff, said:

'Granting that one may not rely wholly on flagman, gates or bell, but must take precaution for his own safety, he may place some reliance on such protection afforded at a crossing. We think it was for the jury to say whether the absence of the watchman and the lack of any signal from him might indicate to a reasonably prudent person that the crossing was clear for safe passage, whether the conduct of the watchman was an invitation to proceed. This view has obtained in case of a pedestrian, Amedo v. [Grand Rapids & I.] Railway Co., 215 Mich. 37, 183 N.W. 929, as in other cases. See Day v. [Pere Marquette] Railway Co., 252 Mich. 589, 233 N.W. 425; Tobias v. [Michigan Central] Railway Co., 103 Mich. 330, 61 N.W. 514; Hudson v. [Grand Trunk Western] Railway Co., 227 Mich. 1, 198 N.W. 339 [23 NCCA 682]; Richmond v. [Chicago & W. M.] Railway Co., 87 Mich. 374, 49 N.W. 621; Crawford v. [Michigan Central] Railway Co., 207 Mich. 159, 173 N.W. 523; Note 53 A.L.R. 973; Note 23 N.C.C.A. 682; Note 16 N.C.C.A. 112.' Motyka v. Detroit, Grand Haven & Milwaukee Railway Co., 253 Mich. 647, 652, 235 N.W. 825, 827, Affirmed on Rehearing, 256 Mich. 417, 240 N.W. 29.

See, also, Silanpa v....