Grand Trunk W. R. Co. v. Lovejoy

• Decision Date: 23 December 1942
• Docket Number: No. 27.,27.
• Citation: 304 Mich. 35,7 N.W.2d 212
• Parties: GRAND TRUNK WESTERN R. CO. v. LOVEJOY et al.
• Court: Michigan Supreme Court

304 Mich. 35

7 N.W.2d 212

GRAND TRUNK WESTERN R. CO.

v.LOVEJOY et al.

No. 27.

Supreme Court of Michigan.

Dec. 23, 1942.

Action by the Grand Trunk Western Railroad Company against Milo D. Lovejoy and others for damage to plaintiff's property resulting from a collision at a railroad crossing. Judgment for plaintiff, and defendants appeal.

Affirmed. Appealed from Circuit Court, Kalamazoo County; George V. Weimer, judge.

Before the Entire Bench.

Jackson, Fitzgerald & Dalm, of Kalamazoo, and Benjamin S. Pagel, of Detroit, for defendants, appellants.

Mason, Sharpe & Stratton, of Kalamazoo (Victor Spike and Wm. W. Macpherson, both of Detroit, of counsel), for plaintiff, appellee.

NORTH, Justice.

This is a motor vehicle, railroad crossing accident suit in reverse. The railroad company sued the owners and drivers of the two vehicles involved for damages to its property. On trial by jury plaintiff had verdict and judgment was entered thereon. Defendants have appealed.

At the close of plaintiff's proofs defendant Lovejoy in his own behalf and the other defendants in their behalf by separate motions moved the court for direction of verdict in their favor on the ground that plaintiff had offered no proof tending to establish actionable negligence on the part of the respective defendants. The trial court refused to so direct a verdict, but reserved decision thereon. Thereafter defendant Lovejoy testified in his own behalf. The first question presented by this appeal is whether denial of the above motions was error. We first consider the motion of defendant Lovejoy.

Plaintiff's proof tended to establish the following facts and circumstances incident to the accident, which occurred at the outskirts of the village of Schoolcraft, Kalamazoo county, Michigan, where U. S. 131 runs north and south and crosses the right-of-way of the Grand Trunk Western Railroad Company: The double line of railroad tracks extends southwesterly and northeasterly from this crossing, and in the southwesterly direction these tracks extend in a straight line four or five miles. Plaintiff's train, involved in the accident, which happened about 2:20 a. m., October 8, 1940, approached the crossing from the southwest. This was a streamlined fast passenger train consisting of the locomotive and thirteen cars. Its speed was approximately seventy miles per hour. As it approached the crossing the locomotive bell was ringing, the whistle was sounded and the standard locomotive headlight equipped with a 250-watt electric bulb enabled the engineer and fireman who were keeping a lookout to observe an object on the track at a distance of 800 feet. This light was clearly visible from the crossing as Lovejoy approached. At the crossing the following safety devices were maintained and in working order: A reflectorized railroad warning sign was located at the easterly side of the highway about 300 feet south of the crossing; and at the crossing there were flasher lights, an electric bell and a one lane gate arm which were operated automatically by the approaching train; but it may be inferred from plaintiff's testimony these safety devices, because of the distance of the train at the time, had not begun to operate as Lovejoy approached plaintiff's tracks. Also about 50 feet south of the crossing there was maintained and in operation at the time an overhead street light.

When plaintiff's train was about 800 feet southwest of the crossing the engineer observed a man standing on the crossing, waving his hand. The fireman saw the truck which belonged to defendant Lovejoy on the railway tracks. The engineer at once applied the emergency brakes which automatically placed sand on the rails, but in spite of every effort the train struck and completely demolished the truck, and before coming to a complete stop proceeded approximately half a mile beyond the crossing. The motor vehicle on the track was a service car or truck, commonly called an automobile wrecker or towing car. A portion of the wrecked truck by the impact was jammed under the locomotive pilot and as the train proceeded beyond the crossing substantial damage was done to the railroad tracks, ties, safety equipment and locomotive.

At the time plaintiff rested there was also before the court insofar as defendant Lovejoy is concerned his own statement contained in his answer to plaintiff's declaration as to the following circumstances connected with the accident: ‘This defendant admits that at and about the time said train above referred to was approaching the crossing and intersection of said railroad right of way with Highway U.S. 131 that this defendant was operating a motor vehicle known as an automobile wrecker and towing truck in a northerly direction on said highway and approaching said railroad right of way on said highway from the south and that on making discovery of the existence of a train on said tracks coming from the southwest and about to cross said highway this defendant brought his wrecker and towing truck to a stop; that said wrecker or towing truck was brought to a stop at a point in said highway where the front part of said truck was approximately on the south rail of the track on which said train was traveling; that defendant on discovery of the presence of said train traveling as aforesaid undertook to back his truck off said track and that while engaged in attempting to put his gears in reverse and back away from said track so as to avoid being struck by said train this defendant's truck was struck on the left and rear end by a motor vehicle approaching from the south and also struck at or near the front end by the plaintiff's train.'

In this jurisdiction under court rules all statements contained in a litigant's pleading insofar as they are admissions against interest rather than self-serving, are treated as evidence thereof. And such admitted facts or circumstances need not be proven by an opposing litigant. Michigan Court Rule No. 23, § 6.

Plaintiff in making its case produced a witness who was a night watchman and who was in the vicinity of the accident at the time it occurred. He heard both the impact which occurred when Lovejoy's truck was struck by the other truck and also the one occasioned by the locomotive striking the Lovejoy truck. This witness gave the following testimony: ‘I would think there might have been time enough between the time of the first and second collision for the driver of the first car to put his car in gear and drive across the track.’ There was testimony that as much as three minutes intervened between the two impacts.

In view of the foregoing portion of the record and other portions to which reference seems unnecessary at this time, it appears that at the time plaintiff rested, as to defendant Lovejoy, there was testimony of negligence on his part which a jury might well have found was a proximate cause of this accident. Under the admission in Lovejoy's answer he was guilty of negligence in the first instance in driving his truck in the face of an approaching train to a point ‘where the front part of said truck...