Dalton's Estate v. Grand Trunk Western R. Co.

• Citation: 350 Mich. 479,87 N.W.2d 145
• Decision Date: 24 December 1957
• Docket Number: Nos. 3,4,s. 3
• Parties: The ESTATE of Roy DALTON, Deceased, by Norman R. Barnard, Administrator, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation, Defendant-Appellee. Douglas DALTON, a Minor, by Norman Barnard, Guardian, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation, Defendant-Appellee.
• Court: Supreme Court of Michigan

Page 145

87 N.W.2d 145

350 Mich. 479

The ESTATE of Roy DALTON, Deceased, by Norman R. Barnard, Administrator, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation,

Defendant-Appellee.

Douglas DALTON, a Minor, by Norman Barnard, Guardian, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation,

Defendant-Appellee.

Nos. 3, 4.

Supreme Court of Michigan.

Dec. 24, 1957.

Anthony Renne, Pontiac, for appellants.

H. V. Spike and F. B. Henderson, Detroit, Patterson & Patterson & Barrett, Pontiac, of counsel, for appellees.

Before the Entire Bench.

SMITH, Justice.

This case involves a railroad crossing accident. A family consisting of husband Roy Dalton, wife, three girls, and a boy was almost completely wiped out, only the son, Douglas Dalton, surviving. Suits were brought by the estate of Roy Dalton, deceased, and Douglas Dalton, against defendant Grand Trunk Western Railroad Company, which suits, by stipulation were consolidated for trial.

The accident occurred a few miles east of the city of Durand. Here the County Line road intersects the right of way of defendant. The crossing is unprotected, save for a cross-arm marker. Immediately north of the tracks and west of the County Line road is an embankment some five to seven feet in height which interferes, to some extent, with the westerly vision of a motorist traveling, as were the Daltons, in a southerly direction on the County Line road when the motorist is close thereto. Such a motorist's view to the west, from which direction the train approached, is partially obstructed some 200 feet north of the crossing by the farm home and buildings of the Thomas family, south of which there is a relatively clear space some 150 feet or more in length, at which point the above described embankment commences to interfere with clear vision.

The Dalton car was being driven, as noted, in a southerly direction on the County Line road about 4:00 p. m. on the afternoon of November 29, 1953. It was a cloudy, overcast day, with snow at intervals. The car passed the Thomas home at a speed of about 20 miles per hour and proceeded, without stopping, onto the tracks where it was struck. The results of the collision, in terms of human life, we have described.

The cases were tried to a jury. At the close of plaintiffs' proofs the court directed verdicts for the defendant. The cases are before us upon general appeals.

The crux of the primary issue before us relates to the negligence of the defendant railroad. Appellants rely upon C.L.S.1956, § 466.13 (Stat.Ann.1955 Cum.Supp. § 22.272), requiring, in part, that:

'A bell of at least 30 pounds weight, and a steam or air whistle or siren, shall be placed on each locomotive engine, and said whistle or siren shall be twice sharply sounded at least 40 rods before the crossing is reached, and after the sounding of the whistle or siren, the bell shall be rung continuously, until the crossing is passed, under a penalty of $100.00 for every neglect.'

Appellants assert that there was testimony from which a jury might have found that the statutory timely warning by whistle was not given. They also point out that there was a complete lack of testimony that the bell was rung as required, but the record discloses that no questions were asked of any witness by either party on this point. Since the primary issue argued to us relates to the sounding of the whistle, we have examined the evidence with respect thereto in detail.

Upon the afternoon in question, which was a Sunday, Mr. and Mrs. Ralph Thomas (whose home, as we have noted, was some 200 or more feet north of the crossing) 'had some friends and relatives in for a Sunday-get-together,' Mrs. Thomas' sister and husband, and her husband's two brothers. It was during this occasion that the tragedy at the nearby intersection occurred. Mr. Ralph Thomas describes the sequence of events from his point of view in these words:

'Around 4:00 or 4:10 that afternoon there was a car and train accident. Immediately prior to the accident I was sitting in my home visiting and the first I knew about it, my brother said something about, 'I wonder if that car made it,' and then I heard the train whistle blowing and then we heard a crash. I recognized the train whistle was blowing as he spoke and then we heard a crash right away. My brother made the remark, 'I wonder if that car made it' and I believe my brother was sitting in a position where he could look out the window. I did not notice any car, but I heard the whistle and the crash. To my best recollection, it was probably just a few seconds before the time when I heard the whistle blowing and the crash. It wasn't very long. I couldn't say just exactly. When my brother said, 'I wonder if that car made it' I got up and started towards the front door, I did not get to the front door. The whistle was blowing when he spoke to me. I don't know how long it was blowing before that or whether it was or wasn't blowing. I didn't hear it until he spoke. He spoke and I got to my feet and started for the door. The door would not be over 10 feet from me.'

The witnesses testifying for plaintiffs with respect to the sounding of the whistle were the Thomases, Mr. and Mrs. Ralph Thomas, and his brother, Lee Thomas. Mrs. Thomas stated that she heard the whistle blowing 'maybe seconds before the crash. * * * Not even a minute I wouldn't say. I wouldn't say for sure just how many seconds.' The strongest possible interpretation of this testimony for plaintiffs (since she uses the plural of the word 'second') is that she heard the whistle blowing two seconds before the crash and that, before this, she did not hear it. Her husband says he heard it 'from the time my brother spoke to me about the car. It might have blown before that, it might not. I couldn't tell you.' Similarly plaintiffs' best position on this testimony is that the witness did not hear a whistle until immediately prior to the crash, practically simultaneously therewith. The final witness is Ralph's brother and guest, Lee Thomas. He testified as follows:

'I saw it when it was there I watched the car from the time I looked out the window of my brother's house, until it reached a point approximately on the railroad track. The car did not stop at any time. It kept right on going until it was hit. The car was going about 20 M. P. H., somewheres in there.

'Q. Now, I understand that your hearing isn't one hundred per cent correct, is that right? A. That's right.

'Q. And do you now remember hearing the whistle at any time? A. I heard it blow just before the accident.

'Q. You remember hearing it just before the accident? A. That's right.

'Q. Whether it blew before that you wouldn't know? A. I wouldn't know. I never heard it.

'Q. And you are not attempting to tell us whether or not the whistle blew before you heard it, are you? A. I couldn't have heard it down the road a mile. I couldn't have heard it there.

'Q. It could have blown back one hundred feet and you not remembered hearing it? A. I would have heard it blowing there. I was not listening for the whistle, but I would have heard it, if it blew. I did not hear the crash because I was turned that way speaking to my brother. I heard the train but did not recognize the different sound outside of the train.'

Likewise, the interpretation of this testimony most helpful to plaintiffs is that the whistle blew 'just before' the accident, but prior thereto the witness did not hear it.

What we have, then, in substance, upon favorable view, is the negative testimony that plaintiffs' witnesses did not hear the whistle until immediately prior to the collision. We do not, of course, reject testimony merely because it is negative. As Wigmore points out in his treatise on Evidence (3d Ed., § 664) '* * * there is no inherent weakness in this kind of knowledge. It rests on the same data of the senses. * * * The only requirement is that the witness should have been so situated that (these italics are the author's) in the ordinary course of events he would have heard or seen the fact that it occurred.'

Testimony that a certain event did not occur may range all the way from that of the nuclear physicist who testifies that in a certain experiment fusion did not take...