Garbacz v. Grand Trunk W. Ry. Co., 3.

• Decision Date: 12 November 1948
• Docket Number: No. 3.,3.
• Citation: 323 Mich. 7,34 N.W.2d 531
• Parties: GARBACZ v. GRAND TRUNK WESTERN RY. CO.
• Court: Michigan Supreme Court

323 Mich. 7

34 N.W.2d 531

GARBACZ

v.GRAND TRUNK WESTERN RY. CO.

No. 3.

Supreme Court of Michigan.

Nov. 12, 1948.

Appeal from Circuit Court, Oakland County; George B. Hartrick, judge.

Action by Walter Garbacz against Grand Trunk Western Railway Company to recover for damages to plaintiff's tractor and trailers as a result of a collision between tractor and trailers with defendant's train. Directed verdict for defendant, and plaintiff appeals.

Affirmed.

Before the Entire Bench.

Davidson & Kaess, of Detroit (Richard K. Amerson, of Detroit, of counsel), for plaintiff and appellant.

Patterson & Patterson, of Pontiac (Forbes B. Henderson, of Detroit, of counsel), for defendant and appellee.

BUTZEL, Justice.

Walter Garbacz, plaintiff, was driving his tractor-trailor combination in a southerly direction on Telegraph Road in Oakland county, Michigan, on the night of December 3, 1947. At the point where the defendant's railroad tracks across the road, his tractor-trailer combination came in contact with a freight train belonging to the defendant. The train was approaching from plaintiff's right at a speed of 30 to 35 miles per hour. The combination being driven by the plaintiff consisted of a tractor to which was attached a one-axle semi-trailer so as to appear as a single unit, and fastened to the rear of the semi-trailer was a four-wheel trailer. They were badly damaged.

Plaintiff claims that the blinker warning signals at the crossing were not working, that no bells or whistle were sounded, for if they had been, he would have heard them. He admitted, however, that he did not bring his tractor and trailers to a stop, as required by law. He had been traveling at a rate of 35 miles per hour, but reduced his speed to 20 to 25 miles per hour as he neared the tracks. When about 25 feet from the tracks, he first saw the train approaching about 50 feet to his right. He tried to avoid the collision by attempting to stop and swerving to the left.

The judge directed a verdict for the defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law in not bringing his tractor and trailer to a full stop before crossing the tracks as required by law. Act No. 191, Pub.Acts 1941, Comp. Laws Supp.1945, § 4699-1 Stat.Ann.1947 Cum.Supp. § 9.1567(1), which provides as follows:

‘The driver or operator of any motor vehicle weighing over 10,000 pounds, including the load thereon, shall not cross any railroad track without coming to a full stop within 50 feet but not less than 10 feet from such railroad tracks . . ..'

Plaintiff contends on appeal that the statute does not apply as tractor weighed only 8,000 pounds, not 10,000 pounds as stated in Act No. 191, Pub.Acts 1941, supra, which statute must be strictly construed. We find no merit in plaintiff's contention. The semi-trailer weighing 4,900 pounds was so attached to the tractor as to become a component part of a single vehicle weighing well over 10,000 pounds, without adding thereto the attached four wheel trailer which weighed 7,420 pounds and was part of the load drawn by the tractor.

Furthermore plaintiff's equipment was operated under a certificate issued by the Michigan Public Service Commission and so governed by its rules, of which rule No. 43 provides:

‘No driver of any motor vehicle under certificate or permit from this commission, shall drive such vehicle across railroad tracks...