DeCorte v. New York Cent. R. Co.

• Decision Date: 08 March 1966
• Docket Number: Nos. 35,36,s. 35
• Citation: 377 Mich. 317,140 N.W.2d 479
• Parties: Nina B. DeCORTE, Plaintiff and Appellee, v. NEW YORK CENTRAL RAILROAD COMPANY, a Michigan corporation, Michigan Milk Producers Association, a Michigan corporation, and Elmer G. Myers, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 479

140 N.W.2d 479

377 Mich. 317

Nina B. DeCORTE, Plaintiff and Appellee, v. NEW YORK CENTRAL RAILROAD COMPANY, a Michigan corporation Michigan Milk Producers Association, a Michigan corporation, and Elmer G. Myers Defendants and Appellants.

Nos. 35, 36.

Supreme Court of Michigan.

March 8, 1966.

Rehearing Denied April 5, 1966.

Gilbert & Gilbert, Saginaw, Robert S. Gilbert, Saginaw, of counsel, for appellee.

O'Keefe, Braun, Kendrick & Finkbeiner, Saginaw, Larry C. Carl, Saginaw, of counsel, for appellant New York Cent. R. Co.

Stanton, Taylor, McGraw & Collison, Saginaw, John Davidson, Saginaw, of counsel, for appellant Michigan Milk Producers Assn.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiff was a passenger on defendant railroad's train. She was injured when it was struck by a milk truck owned by defendant Myers and driven by an employee of his. The truck was being operated under arrangements between Myers, certain dairy farmers, and defendant Michigan Milk Producers Association for picking up milk from the farmers and delivering it to designated receiving stations of the defendant association, hereinafter referred to as MMPA. Plaintiff included the latter as defendant on the theory that it was the employer of defendant Myers and his driver.

A jury returned a verdict of $31,518 for plaintiff against all the defendants. The defendants, other than Myers, appeal.

First, we consider defendant railroad's contention that there was not sufficient evidence to justify submission to the jury of the question of negligence on the part of the railroad. The relevant facts are that, in broad daylight, the train was travelling northwesterly at a speed of 65 miles per hour. The milk truck was travelling easterly, toward the track, at 40 to 45 miles per hour. They were approaching the crossing of the highway and the track. In the southwest quadrant of the crossing there were a house and a number of other buildings and trees which partially obstructed the view of the operators of motor vehicles approaching from the west of the crossing and engineers approaching it from the south. At a point 1,000 feet south of the crossing an engineer looking behind those obstructions could view a point on the road 500 feet west of the crossing. Proceeding north from there, the engineer's view became obstructed, except, however, that it was always possible for him to see the area within 50 feet west of the crossing.

Neither the truck driver nor engineer were alive at time of trial and so neither could be called to testify.

A man living in the house in the southwest quadrant was a witness for plaintiff. He testified that at the time in question he was in his house and heard the train whistle in prolonged fashion. He estimated, from the sound of the whistle, that when he first heard it the train was from 800 to $1,000 feet south of the crossing. Because the whistle continued to sound the witness concluded that something was wrong and so he looked out of a north window and saw the truck about 150 feet from the crossing, going 40 to 45 miles per hour. He then looked out of an east window and saw the train 75 to 100 feet from the crossing. The train did not decrease its speed at any time prior to being struck by the truck. The truck ran into the midsection of the left side of the car in which plaintiff was riding, causing it to be derailed and plaintiff to be injured.

There is no testimony to support a finding that the engineer did not maintain a reasonable and proper lookout. From the sounding of the whistle it might be inferred that he did see the approaching truck while view was still open to him behind the buildings. There is no testimony to show that at any point, while it was still possible to stop the train before collision, it became, or should have become, apparent to him that the truck was not going to stop before entering upon the crossing. There is no showing upon which to base the conclusion that at any time before it was too late the engineer should have been alerted and have realized that he could no longer rely on the assumption that the truck would stop before crossing.

In Lake Shore & Michigan Southern Railroad Co. v. Miller, 25 Mich. 274, this Court said:

'It is true there are some apparent qualifications or exceptions to this rule (that a party whose negligence has contributed to the injury can not recover); thus, though the plaintiff is in fault by negligently driving upon the track of a railroad, or not using due diligence to get out of the way, yet, if he be seen by the engineer in time to avoid the injury by reasonable diligence in checking the train, the failure to do so would be treated as the proximate cause of the injury, if, from what the engineer could see, he had good reason to believe the plaintiff could not, or was not likely to, get off in time, or did not seem to be aware of the danger, and was therefore making no effort to avoid it. But if an engineer see a team and carriage, or a man, in the act of crossing the track far enough ahead of him to have ample time, in the ordinary course of such movements, to get entirely out of the way before the approach of the engine, or if he sees a man walking along upon the track at a considerable distance ahead, and is not aware that he is deaf or insane, or from some other cause insensible of the danger, or if he sees a team or man approaching a crossing too near the train to get over in time, he has a right to rely upon the laws of nature and the ordinary course of things, and to presume that the man driving the team or walking upon the track, has the use of his senses, and will act upon the principles of common sense and the motive of self-preservation common to mankind in general, and that they will, therefore, get out of the way; that those on the track will get off, and those approaching it will stop, in time to avoid the danger; and he therefore has the right to go on, without checking his speed, until he sees that the team or the man is not likely to get out of the way, when it would become his duty to give extra alarm by bell or whistle, and if that is not heeded, then, as a last resort, to check his speed or stop his train, if possible, in time to avoid disaster.'

In Buchthal v. New York Central Railroad Co., 334 Mich. 556, 55 N.W.2d 92, this Court also said:

'Plaintiff contends that under the admitted conditions of good visibility the train crew, particularly the fireman and the engineer, charged with the duty of observing persons lawfully crossing the tracks and of maintaining a reasonable lookout, should have stopped the train when the car became visible. There was no duty upon the train crew to slow down the train or stop, even if they had seen the car. In Piskorowski v. Detroit, G. H. & M. R. Co., 121 Mich. 498, 80 N.W. 241, 80 Am.St.Rep. 518, we held that a hand car crew was not negligent as to a pedestrian unless they realized that the traveler would not stop and the crew have a right to assume that he will stop. We have held that at a country crossing there is no reason to slacken speed unless danger is apparent. See Tucker v. Chicago & Grand Trunk Ry. Co., 122 Mich. 149, 80 N.W. 984; Knicker-bocker v. Detroit, G. H. & M. R. Co., 167 Mich. 596, 133 N.W. 504; Rushford-Surine v. Grand Trunk R. Co., 239 Mich. 19, 214 N.W. 168; Tomes v. Detroit, T. & I. R. Co., 240 Mich. 133, 215 N.W. 308. It is obvious that, under plaintiff's own testimony, had the train crew realized that the motorist intended to continue across the tracks it would have been too late to prevent the accident. Whether they made an actual observation becomes immaterial.'

In Rushford-Surine v. Grand Trunk Railway Co., 239 Mich. 19, 214 N.W. 168, this Court said:

'If the engineer had seen the truck when it came in view 50 feet back from the track, and when the train was 500 or 600 feet from the crossing, and this is the most it can by any possibility be claimed he was bound to do, he would not have been bound to assume that the occupants of the truck would continue on their way and be required to stop the train. In Knicker-bocker v. Detroit, G. H. & M. Railway Co., 167 Mich. 596, 133 N.W. 504, it was said by Mr. Justice Ostrander, speaking for the court:

"But it is not negligence--clearly it is not gross negligence--to fail to stop or to fail to gain complete control of a train of cars, merely because persons are seen approaching the track upon a highway on foot, or with vehicles. Such an approach is not usually evidence of negligence, and such persons are not usually in any peril."

The railroad has the right-of-way and the engineer might assume that the truck would stop until it became apparent that the truck could not or would not stop. There is no proof that this ever did or should have become apparent to the engineer in time to have enabled him to stop and avoid the accident. There was no evidence to go to the jury on the question of the railroad's negligence. Its motion for judgment non obstante veredicto should have been granted. We need not, therefore, discuss other charges of error prejudicial to that defendant. Case reversed as to defendant railroad with directions to enter a judgment of no cause of action in its favor, together with costs.

Defendant Myers has taken no appeal. We are left to consideration of the appeal of the Michigan Milk Producers Association. Its chief ground of appeal is that Myers, as owner of the truck operated by his employee, was, as a matter of law, not an agent, servant or employee of MMPA and, hence, that the latter is not liable for consequences of the collision and its motions for directed verdict and judgment non obstante veredicto should have been granted. Here further facts are to be noted. The MMPA is a farmer-owned and farmer-controlled marketing and bargaining cooperative. Its main function is to bargain in behalf of its dairy-farmer members for the sale of their milk to distributors and others and...