Cryderman v. Soo Line R. Co.
| Decision Date | 20 September 1977 |
| Docket Number | Docket Nos. 28671 and 28672 |
| Citation | 78 Mich.App. 465,260 N.W.2d 135 |
| Parties | Forrest H. CRYDERMAN, Administrator of the Estates of Mary Lou Cryderman, Forrest H. Patrick Cryderman and Sherri Noel Cryderman, Deceased, Michael E. Darling, Administrator of the Estates of Deann Renea Darling, Tracy Marie Darling and Charlotte Darling, Deceased, and Frank J. Sauro, Administrator of the Estate of Carol Sauro, Deceased, Plaintiffs-Appellees, v. SOO LINE RAILROAD COMPANY and Chippewa County Road Commission, jointly and severally, Defendants-Appellants. 78 Mich.App. 465, 260 N.W.2d 135 |
| Court | Court of Appeal of Michigan — District of US |
Jonathon S. Damon, Grand Rapids, Co-counsel.
Hillman, Baxter & Hammond, Grand Rapids, for amicus.
George L. Downing, Detroit, Thomas J. Moher, Sault Ste. Marie, for plaintiffs-appellees.
Before R. B. BURNS, P. J., and D. E. HOLBROOK and BREIGHNER, * JJ.
FACTS
Defendants appeal seven lower court judgments based upon jury awards granting plaintiffs aggregate money damages in excess of $1,250,000.
This wrongful death action arises out of a car-[78 MICHAPP 469] train accident at the Fibre Crossing in Chippewa County which claimed the lives of eight persons. The accident occurred at the place where Highway 40 intersects the Soo Line Railroad Company's railroad track.
The trial court deducted $1000 for funeral expenses from each verdict pursuant to M.C.L.A. § 500.3107; M.S.A. § 24.13107 and thereafter entered individual judgments for the plaintiffs as determined by the jury.
Events producing this litigation occurred on July 30, 1974. On that date, at approximately 11:50 a. m., a northbound 1972 Oldsmobile stationwagon, driven by Sandra Chamberlain, and occupied by four children and three adults, collided with an eastbound Soo Line freight train at the Fibre Crossing. All eight occupants of the motor vehicle died as a result of injuries received in this accident.
The railroad first contends reversible error occurred in the court's instructions to the jury. We disagree.
During its summation of plaintiffs' theory, the court informed the jury they could consider, as evidence of the railroad's negligence, whether or not:
(a) The train whistle was properly sounded;
(b) The train was adequately equipped with an audible whistle;
(c) The train was being operated at an excessive speed;
[78 MICHAPP 470] (d) The train engineer failed to maintain a careful observation of his surroundings as he approached the crossing;
(e) Defendant should have petitioned the Public Service Commission for permission to erect additional crossing protections; and
(f) Defendant should have entered into a "clear vision area agreement" with the Chippewa County Road Commission.
The railroad asserts these instructions ought not to have been given, even as a statement of plaintiffs' theory, since these claims find no support in the record.
The railroad failed to timely interpose an objection to the instructions here challenged. The rule is well established that failure to object on the lower court level generally precludes appellate consideration. Moskalik v. Dunn, 392 Mich. 583, 221 N.W.2d 313 (1974), Hunt v. Deming, 375 Mich. 581, 134 N.W.2d 662 (1965), National Pharmaceutical Services, Inc. v. Harrison Community Hospital, 67 Mich.App. 286, 241 N.W.2d 76 (1976), Williams v. The Detroit Edison Co., 63 Mich.App. 559, 234 N.W.2d 702 (1975).
In explaining the purpose for that rule, the Moskalik Court stated:
392 Mich. at 592, 221 N.W.2d at 316.
As already noted, the criticized instructions were given as a statement of plaintiffs' theory of their case. We now consider applicable standards applying to the railroad's substantive claim.
[78 MICHAPP 471] Each party is entitled to have his theory of the case, if supported by evidence, explained to the jury. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 562. Such instructions, however, should not be given where there is (1) no evidence to support them, or (2) where such instructions take or assume as established "those facts which the parties, by their proofs, have placed in controversy". Hansen v. Batchelder, 14 Mich.App. 627, 633, 165 N.W.2d 886, 889 (1968).
If this Court finds theory instructions were incorrectly given, by application of the foregoing criteria, and instructional error occurred, inquiry then focuses upon the nature of the error, harmful or harmless. With respect to this inquiry, reversal need only be pronounced if this Court finds a violation of the tests set forth in GCR 1963, 529.1.
We believe there was evidence in the record to support the theory instructions as given. We do not find even harmless error. As already noted, no timely objection was registered.
The railroad also asserts the court reversibly erred when it refused to grant defendant's motion for judgment notwithstanding the verdict. We disagree.
The standard for review of such a lower court determination is defined in Weiss v. Ford Motor Co., 64 Mich.App. 519, 525, 236 N.W.2d 124, 127-128 (1975). That standard is whether, after viewing the facts and all legitimate inferences therefrom in the light most favorable to the party opposing the motion, reasonable men could differ. If they can, the question is one for the trier of fact.
As a matter of law, the railroad contends the [78 MICHAPP 472] negligence of Sandra Chamberlain, the driver of the car, was the sole proximate cause of plaintiffs' damages. It is the railroad's position that Mrs. Chamberlain's negligent conduct superseded and cut off any causation that might have existed between the railroad's negligence and injury to plaintiffs.
Applying the standard described in Weiss, supra, if reasonable minds can differ on the conduct of Mrs. Chamberlain, as contributing to plaintiffs' injuries, the lower court determination must be upheld. Our examination of the record convinces us that a fact issue existed for the jury's determination as to such conduct.
In reviewing this claim of error, we have considered Caldwell v. Fox, 394 Mich. 401, 422, 231 N.W.2d 46, 56 (1975), Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970), Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959), Gleason v. Hanafin, 308 Mich. 31, 38, 13 N.W.2d 196, 199 (1944), Johnson v. Grand Trunk W. R. Co., 58 Mich.App. 708, 228 N.W.2d 795 (1975), Kubasinski v. Johnson, 46 Mich.App. 287, 288, 208 N.W.2d 74, 75 (1973).
Next, it is the railroad's contention that the trial court erred in permitting an expert to express an opinion on ultimate factual issues. This claim is without merit.
Over vehement objection, a traffic safety specialist was permitted to testify that the railroad crossing should have been equipped with flashing lights, and that the Public Service Commission should have been petitioned for authority to erect flashing signals. The expert expressed the opinion [78 MICHAPP 473] that a reasonably prudent railroad would have taken such action.
A properly qualified expert may express an opinion which is otherwise admissible but embraces the ultimate issue of fact. In re Powers Estate, 375 Mich. 150, 134 N.W.2d 148 (1965), Dudek v. Popp, 373 Mich. 300, 129 N.W.2d 393 (1964), Cook v. Kendrick, 16 Mich.App. 48, 167 N.W.2d 483 (1969), LaFave v. Kroger Co., 5 Mich.App. 446, 146 N.W.2d 850 (1966), GCR 1963, 605.
We find no error in the trial court's admission of the criticized opinion testimony.
Lastly, the railroad asserts an abuse of discretion by the trial court in denying a motion for new trial, based on the claim of excessive verdict. We disagree.
It is well established that jury verdicts will be set aside by appellate courts as excessive only in rare instances. Pippen v. Denison Division of Abex Corp., 66 Mich.App. 664, 239 N.W.2d 704 (1976).
In order to support a request for a new trial, based on excessive verdict, proof of the challenging party is required as to at least one of the following:
(1) That the lower court abused its discretion in denying a new trial since the jury verdict was based on prejudice, caprice, passion, partiality, sympathy or kindred reasons. The verdict was not the result of a consideration of the evidence.
(2) Or, that the verdict as rendered is "shocking" to the judicial conscience.
To prevail under the first criterion, it is necessary to show a trial court abuse of discretion. An abuse of discretion exists when the result is so [78 MICHAPP 474] palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. Spalding v. Spalding, 355 Mich. 382, 384-385, 94 N.W.2d 810, 812 (1959).
Such abuse must be demonstrated by a showing that the verdict resulted from prejudice, caprice, passion, partiality, sympathy or kindred reasons.
In searching the record, we have applied these standards. The record does not support a contention that the trial court abused its discretion in the context here required.
Under the second criterion, appellate courts will reduce jury verdicts according to the following standard:
"As long as the amount awarded is within the range of the evidence, and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained and pain and suffering, the verdict rendered should not be set aside." Pippen v. Denison Division of Abex Corp., 66 Mich.App. 664,...
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