Grand Trunk Western R. Co. v. City of Detroit

Decision Date06 June 1955
Docket NumberNo. 21,21
Citation342 Mich. 537,70 N.W.2d 925
PartiesGRAND TRUNK WESTERN RAILROAD COMPANY, Plaintiff-Appellant, v. CITY OF DETROIT, Defendant-Appellee.
CourtMichigan Supreme Court

H. V. Spike, F. B. Henderson, Detroit, W. W. Macpherson, Detroit, of counsel, for plaintiff-appellant.

Paul T. Dwyer, Corp. Counsel, Leo E. La Joie, Alfred Sawaya, Assts. Corp. Counsel, Detroit, for defendant-appellee.

Before the Entire Bench.

BUTZEL, Justice.

Grand Trunk Western Railroad Company, plaintiff, brought suit against the city of Detroit claiming implied indemnity for the sum of $13,174,20 which plaintiff paid its employee, Kenneth S. Tasker. Defendant had caused a sign to be attached to a utility pole which was contiguous to plaintiff's track where it crossed St. Aubin street in the city of Detroit. It was a 'No Left Turn' sign, 32 inches by 40 inches in size and was attached to the pole some 11 feet from the ground, the edge of the sign being 7.1 feet from a perpendicular rising from the center line of the track at a point nearest the sign. Tasker, a locomotive fireman, was on the left running board of a locomotive which was backing up on this track at about 5 miles per hour, when he was severely injured by coming in contact with the sign. This occurred on April 15, 1949. The sign had been erected several years prior to the time of the accident.

Shortly afterward plaintiff's chief claims agent notified the defendant's corporation counsel's office of the facts of the accident, the letter saying that 'undoubtedly the City of Detroit will be involved in the adjustment of claim.' Plaintiff later 'tendered' the case to defendant for handling, apparently considering the city to be the responsible party. Correspondence and personal contact between the two followed and defendant made known its view that a public hearing was required for the purpose of obtaining the necessary information. Defendant also made clear that no action could be taken on its part without such a hearing. No hearing was held and no petition or claim was ever filed with the council. Plaintiff advised defendant that a settlement meeting would be held with the injured employee and that plaintiff 'would like to include the City of Detroit representatives at this meeting.' Defendant did not participate in the settlement but asked to be advised of its outcome. Pressure was brought upon the railroad and threat was made to institute proceedings in a jurisdiction 'where verdicts were reputedly much larger, in prospect, than in this jurisdiction.' Thereafter, a settlement in the amount of $11,000 plus medical and other expenses was effected between plaintiff and its employee, the railroad receiving a covenant not to sue. Plaintiff apparently settled the case in view of the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51, et seq., under which its liability is predicated upon negligence and contributory negligence is not a bar to recovery. The following day a suit in Tasker's name was commenced against the defendant city. It was admitted that this was a mistaken remedy in every respect and two and one-half years later the suit was dismissed by stipulation. The railroad then commenced the instant case.

It is plaintiff's initial claim that defendant was negligent in maintaining the sign so near the tracks and therefore plaintiff is entitled to indemnification or contribution for amounts paid its employee because of such negligence. Plaintiff admits to being passively negligent, but seeks contribution under the settled joint tort-feasors' rule in that regard. See Village of Portland v. Citizens' Telephone Co., 206 Mich. 632, 173 N.W. 382, Cf. C.L.1948, § 691.561 et seq., Stat.Ann. § 27.1683(1) et seq.

In a second count plaintiff seeks recovery on the ground that the sign as maintained was a nuisance. Plaintiff claims here that it seeks indemnification, not as a passively negligent joint tort-feasor, but merely as one who has been required to pay its employee on account of a nuisance maintained by another, the defendant. However, in view of our...

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6 cases
  • Morgan v. McDermott, 2
    • United States
    • Michigan Supreme Court
    • September 3, 1969
    ...county road commissioners, see Moore v. County of Ingham (1961), 363 Mich. 533, 110 N.W.2d 920.6 In Grand Trunk Western Railroad Co. v. City of Detroit (1955), 342 Mich. 537, 70 N.W.2d 925, plaintiff's employee was injured by a sign the city had attached to a pole. The railroad, after settl......
  • Penix v. City of St. Johns
    • United States
    • Michigan Supreme Court
    • October 13, 1958
    ...Battle Creek, 288 Mich. 152, 284 N.W. 680; Sykes v. City of Battle Creek, 288 Mich. 660, 286 N.W. 117; Grand Trunk Western Railroad Co. v. City of Detroit, 342 Mich. 537, 70 N.W.2d 925. None of these cases presented the question, before us here, whether service of the claim upon the city ma......
  • Lenz v. City of Detroit
    • United States
    • Michigan Supreme Court
    • September 16, 1960
    ...City of Detroit, 102 Mich. 300, 60 N.W. 688; Moulthrop v. City of Detroit, 218 Mich. 464, 188 N.W. 433, and Grand Trunk W. R. Co. v. City of Detroit, 342 Mich. 537, 70 N.W.2d 925. We see no merit to plaintiff's contention that he did not have to comply with the charter provisions because 'a......
  • Mikelsavage v. City of Detroit
    • United States
    • Michigan Supreme Court
    • December 1, 1955
    ...the corporation counsel received notice; hence plaintiff complied with the requirements commented on in Grand Trunk Western Railway Co. v. City of Detroit, 342 Mich. 537, 70 N.W.2d 925. But differing from the Grand Trunk Co. Case, in the instant case defendant demanded plaintiff to come to ......
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