Chesapeake and Ohio Railway Company v. Barnaby

• Decision Date: 23 July 1969
• Docket Number: No. 18535.,18535.
• Citation: 414 F.2d 309
• Parties: The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. L. A. BARNABY and Howard Parker, Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

414 F.2d 309 (1969)

The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. L. A. BARNABY and Howard Parker, Third-Party Defendants-Appellees.

No. 18535.

United States Court of Appeals Sixth Circuit.

July 23, 1969.

Paul O. Strawhecker, Grand Rapids, Mich., for appellant, Robert A. Straub, Detroit, Mich., on the brief.

Edward D. Wells, Grand Rapids, Mich., for appellees, Cholette, Perkins & Buchanan, Grand Rapids, Mich., on the brief.

Before PHILLIPS, EDWARDS and PECK, Circuit Judges.

EDWARDS, Circuit Judge.

This is a third-party action by plaintiff-appellant railroad against defendants, who were the driver and the owner of a mail truck which had struck and injured an employee of the railroad. The employee, Joseph Sleeman, had sued the railroad under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1964), and recovered a judgment. Sleeman v. Chesapeake & Ohio R. R., 290 F.Supp. 817 (W.D.Mich.1968), aff'd in part, rev'd in part, 414 F.2d 305 (6th Cir. 1969). The court in that case held that negligent design in lighting of the railroad's parking lot, where the accident occurred, played some part in causing this accident. The railroad in this action sought contribution against the third-party defendants, contending that they are joint tortfeasors. The jury returned a verdict in favor of defendants, finding no cause for action. The jury also answered special questions propounded to it by the District Judge. It answered "Yes" to a question as to whether the defendant truck driver had been negligent — but answered "No" to the question as to whether such negligence had been a proximate cause of Sleeman's injuries.

On this appeal appellant C & O's primary issue, as we see the matter, is whether the jury's answer holding the driver's negligence not to be a proximate cause of the accident was against the great weight of evidence.

The facts are set out in detail both in Sleeman v. Chesapeake & Ohio R.R., 414 F.2d 305 (6th Cir. 1969), and in the District Judge's opinions in these two cases, Sleeman v. Chesapeake & Ohio R. R., 290 F.Supp. 817 (W.D.Mich.1968); Sleeman v. Chesapeake & Ohio R. R., 290 F.Supp. 830 (W.D.Mich.1968).

There was evidence from which the jury could have concluded that Sleeman was guilty of contributory negligence and that the C & O parking lot was negligently designed and lighted — or both. Sleeman testified that he had seen the truck coming and had continued walking rapidly across the driveway in the driving rain without looking again, after concluding that the truck would pass behind him. This evidence alone would justify a jury verdict of no cause for action against defendants, since contributory negligence of the plaintiff is a valid defense under Michigan law. See, e. g., Rouse v. Michigan United Ry., 158 Mich. 109, 122 N.W. 532 (1909); Worthington Corp v. Lease Management, Inc., 352 F.2d 24 (6th Cir. 1965), cert. denied, 383 U.S. 937, 86 S.Ct. 1068, 15 L.Ed.2d 854 (1966).

Appellant's complaint, however, is not based on the ultimate verdict. It is addressed to the claimed conflict between the special question findings that 1) defendant truck driver was negligent, and that 2) such negligence was not a proximate cause of Sleeman's injuries.

Among other things, the District Judge instructed the jury that it had the right to determine from the total evidence in the case whether or not there was negligence in the condition or speed of defendants' truck at the date and time and under the total circumstances of this case. The jury could have concluded that there was some neglect on defendants' part in relation to one or more of these factors. But...