Davis v. New York Cent. R. Co.

• Decision Date: 17 May 1957
• Docket Number: No. 77,77
• Citation: 83 N.W.2d 271,348 Mich. 262
• Parties: Leslie W. DAVIS, Plaintiff and Appellant, v. NEW YORK CENTRAL RAILROAD CO., Defendant and Appellee.
• Court: Michigan Supreme Court

Page 271

83 N.W.2d 271

348 Mich. 262

Leslie W. DAVIS, Plaintiff and Appellant, v. NEW YORK CENTRAL RAILROAD CO., Defendant and Appellee.

No. 77.

Supreme Court of Michigan.

May 17, 1957.

Kelly, Kelly & Kelly, Jackson, for plaintiff and appellant.

McKone, Badgley, Domke & Kline, Jackson, for defendant and appellee.

Before the Entire Bench.

CARR, Justice.

While driving his automobile across the tracks of the defendant railroad company at Hall Street in the City of Eaton Rapids, plaintiff was struck by a train operated by defendant in a westerly direction, and severely injured. The accident occurred on November 13, 1954, at approximately 6:40 p. m. The train in question was not a regularly scheduled one. Claiming that the accident and his injuries sustained therein resulted from negligence on the part of defendant, plaintiff brought this action for damages. The declaration alleged that the defendant's employees had negligently placed certain cars on a siding in such manner as to obstruct plaintiff's view to the east as he approached the crossing, that proper signals of the approach of the train were not given, and that said train was traveling at an excessive rate of speed. Plaintiff further averred that he exercised a reasonable and proper outlook for his own safety, and that he was not guilty of negligence contributing to the accident.

Defendant by answer denied negligence on its part and further asserted that plaintiff failed to make proper observations before attempting to cross the tracks and was for that reason guilty of contributory negligence. The case was duly brought on for trial before a jury. At the conclusion of plaintiff's proofs counsel for defendant moved for a directed verdict on the grounds, 1st, the plaintiff had failed to show any negligence on defendant's part, and, 2nd, that under the record as it then stood plaintiff was guilty of contributory negligence as a matter of law. The trial judge inferentially assumed that a question of fact for the jury was presented insofar as the first ground of the motion was concerned, but concluded that the plaintiff was guilty of contributory negligence. The motion was accordingly granted. Thereupon plaintiff moved for a new trial, which was denied, the trial judge in his opinion discussing the testimony at some length and concluding that plaintiff had failed to establish reasonable care on his part as he approached the tracks of the defendant. From the judgment entered on the directed verdict plaintiff has appealed. The question for consideration is whether he was guilty of contributory negligence as a matter of law.

Plaintiff was driving on Hall Street in a northerly direction at the time of the accident. The tracks of the defendant intersect said street at an angle, the crossing being marked with a wooden cross-arm sign. At Main Street, approximately 360 feet east of Hall Street, crossing bells and flashing lights were maintained by defendant to indicate the approach of a train. Farther to the east is Jackson Street, approximately 960 feet distant, its location being significant solely on the ground that witnesses for plaintiff testified that they heard the whistle blown in proximity to Jackson Street as the train approached.

As a witness in his own behalf plaintiff testified that he had lived in Eaton Rapids for 22 years, that he operated a milk route, and that he was familiar with the crossing where the accident occurred. He claimed further that he was familiar with the schedule of regular trains passing through Eaton Rapids, and that on the occasion in question he was aware that no regular train was scheduled to pass. He also testified, as did other witnesses, that switching operations of freight cars were protected by a flagman at the Hall Street crossing.

On his direct examination plaintiff testified to the presence of freight cars on the siding south of the main track, and that those on the east side of Hall Street, from which direction defendant's train approached, interfered with his view in that direction. It was his claim that he knew that a train might pass through the city at any time, that he looked in both directions alternately as he approached the crossing, that he listened for signals, and that he heard no bell or whistle of a train coming from the east. It was his claim also that he could have heard a bell or whistle if it had been sounded. His testimony indicated that the crossing was well lighted, and it is suggested that this fact is important as bearing on the question whether plaintiff was negligent in failing to notice beams from the headlights of the locomotive.

Plaintiff stated that as the front end of his car entered on the south rail of the side track he could see approximately 45 feet to the east along defendant's main track, that he looked at that time, and that there was no train in sight. He insisted that he heard no bell or whistle at that time, and that he could have heard them if such signals had been given. He testified that, having taken his view to the east, he then looked to the west to see if there was possible danger from that direction. He claimed that he was struck by defendant's locomotive as he was completing such view. He estimated his speed at the time he was struck at approximately eight miles an hour. On his cross-examination plaintiff indicated that he could not have heard the warning bell at Main Street if the wind had been against him, that is, blowing from west to east. He admitted also that he had the windows of his car closed. It should be noted that on his cross-examination plaintiff was apparently referring to the warning bell at Main Street, rather than to the bell on defendant's locomotive which the answer to the declaration alleged was ringing.

Plaintiff's witness Roland White, who was standing outside his store on Main Street as the train passed, testified that he heard the whistle blown 'in the vicinity east of Jackson Street', that he did not hear it again, and that as the train passed west toward Hall Street he did not hear any bell on the locomotive. He claimed that he could have heard it had it been rung. The testimony of Mrs. White corroborated that of her husband. Other witnesses called by plaintiff testified as to the regular train operations in and through Eaton Rapids. The physical situation involved in the case is indicated by exhibits that have been submitted to this Court with the record.

Do the proofs in the case, and particularly the testimony of the plaintiff, establish that he was guilty of contributory negligence as a matter of law? If the issue was one concerning which opinions might properly have differed he was entitled to have his case submitted to the jury on the basis of the proofs as they stood at the time the motion for a directed verdict was made. In considering the matter we must necessarily have in mind the general rule that the proofs offered by plaintiff must be construed as strongly as possible in his favor. Thompson v. Michigan Cab Co., 279 Mich. 370, 272 N.W. 710; Grover v. Simons, 342 Mich. 480, 70 N.W.2d 775. The rule is applicable notwithstanding that certain inconsistencies and contradictions may be deemed to exist in plaintiff's testimony. Yampolsky v. Smith, 320 Mich. 647, 32 N.W.2d 8.

In Thompson v. Michigan Cab Co., supra [279 Mich. 370, 272 N.W. 711], which was an action to recover damages for injuries sustained in an intersection accident, it was claimed on behalf of defendant that the driver of plaintiff's car was guilty of contributory negligence as a matter of law. After referring to the testimony, it was said, in part:

'Under the legitimate inferences from all of plaintiff's testimony taken in its most favorable light (Loveland v. Nelson, 235 Mich. 623, 209 N.W. 835), did Benjamin exercise that degree of reasonable care that would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of injury? Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99, 118.

'It is an impossibility to lay down precise rules by which we may measure all acts of contributory negligence. Some cases must, of necessity, stand or fall on their own facts. What one does or fails to do as relates to the circumstances under which he acts is the test to be applied. Flynn v. Kramer, 271 Mich. 500, 505, 261 N.W. 77.

* * *

* * * 'Were Benjamin's actions those of an ordinary careful and prudent man under like circumstances? Can the minds of reasonable men differ in answering this question? If so, the evidence should be submitted to a jury. Adams v. Canfield, 263 Mich. 666, 248 N.W. 800. In cases of this character, it should be made very plain by the proofs that the conduct of plaintiff's driver was negligent before he should be declared to be guilty of contributory negligence as a matter of law. Frary v. Grand Rapids Taxicab Co., 227 Mich. 445, 198 N.W. 897.'

In Detroit & Milwaukee Railroad Co. v. Van Steinburg, cited by the Court in the language above quoted, Chief Justice Cooley pointed out that as a general rule the question of negligence is one of fact and not of law. In discussing the propriety of a directed verdict generally, it was said, in part:

'The case, however, must be a very clear one which would justify the court in taking upon itself this responsibility. For, when the judge decides that a want of due care is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and, measuring the plaintiff's conduct by that, turns him out of court upon his opinion of what a reasonably prudent man ought to have done under the circumstances. He thus makes his own opinion of what would be generally regarded as prudence a definite rule of law. It is quite possible that, if the same question of prudence were submitted to a jury collected from the different occupations of society, and perhaps better competent to judge of the common opinion, he might find them differing...