Johnson v. Grand Trunk Western R. Co.

• Decision Date: 24 February 1975
• Docket Number: Docket No. 14585,No. 1,1
• Citation: 58 Mich.App. 708,228 N.W.2d 795
• Parties: Verna M. JOHNSON, Administratrix of the Estate of Thelma Marie Johnson, Deceased, and Special Guardian of the Estate of Frank Johnson, M.I., and Verna M. Johnson, Individually, Plaintiffs- Appellants. v. GRAND TRUNK WESTERN RAILROAD COMPANY, a Michigan Corporation, and Detroit & Toledo Shore Line Railroad Company, a Michigan Corporation, jointly and severally, Defendants- Appellees
• Court: Court of Appeal of Michigan — District of US

Page 795

228 N.W.2d 795

58 Mich.App. 708

Verna M. JOHNSON, Administratrix of the Estate of Thelma Marie Johnson, Deceased, and Special Guardian of the Estate of Frank Johnson, M.I., and Verna M. Johnson Individually Plaintiffs- Appellants. v. GRAND TRUNK WESTERN RAILROAD COMPANY, a Michigan Corporation, and Detroit & Toledo Shore Line Railroad Company, a Michigan Corporation, jointly and severally Defendants- Appellees.

Docket No. 14585.

Court of Appeals of Michigan, Division No. 1.

Feb. 24, 1975.

Rehearing Denied April 9, 1975.

Released for Publication May 12, 1975.

Martin M. Miller, Milan & Miller, Detroit, for Thomas Fleming.

Gary C. Berger, Zeff & Zeff, Detroit, for plaintiffs-appellants.

Earl C. Opperthauser, Detroit, for Grand Trunk Western R. Co.

Before J. H. GILLIS, P.J., and V. J. BRENNAN and PETERSON, ^* JJ.

J. H. GILLIS, Presiding Judge.

This personal injury action arises from a February 16, 1970 accident at a Detroit railroad crossing between an automobile and a train. After plaintiffs, Frank Johnson and Verna M. Johnson, had presented their case, defendants Grand Trunk Western Railroad Company (hereinafter referred to as Grand Trunk) and Detroit & Toledo Shore Line Railroad Company (hereinafter referred to as Shore Line) both moved for a directed verdict. On May 25, 1972 the trial judge granted each defendant's motion. Plaintiffs appeal.

Frank Johnson and his 16-year-old daughter, Thelma Marie Johnson, were passengers in a car driven by one Thomas Fleming in an easterly direction on East Eight Mile Road. While crossing defendant Grand Trunk's tracks at Eight Mile and Hoover Roads, the car stopped and was struck by a southbound train owned and operated by defendant Shore Line. Frank Johnson suffered permanent injuries, including brain damage. He is now a mentally retarded invalid confined to a nursing home for the rest of his life. Thelma Marie Johnson received fatal injuries, dying four days after the accident.

The engineer, Lester Cannon, testified that as the train approached the crossing, cars traveling in both directions continued to cross the tracks even though the warning lights and bells were operating. When the train was approximately 200 yards north of Eight Mile, the engineer saw plaintiffs' automobile approach the crossing at 'a good rate of speed', then brake and come to a stop about 50 feet west of the tracks. As the train arrived at the edge of westbound Eight Mile, plaintiffs' vehicle suddenly accelerated rapidly, then braked and came to a stop on the tracks. By this time, the train was already crossing the median strip between the westbound and eastbound lanes and was only a second or two from impact.

At the time of this accident the Grand Trunk tracks were protected by advancewarning signs, cross-buck signs and four sets of back-to-back flashing red lights installed pursuant to 1933 and 1946 orders of the Michigan Public Service Commission (hereinafter referred to as MPSC).

On June 22, 1964, the MPSC, by its railway safety inspector, Harry Taylor, conducted a formal inspection of the crossing at the request of the State Highway Department. The inspection was requested because the highway authorities proposed widening Eight Mile from three lanes in each direction to five lanes in each direction. The work was scheduled to be completed in 1965.

Mr. Taylor determined that because of a high volume of combined train and automobile traffic, a revised pattern of crossing protection was needed. He recommended a pattern of two flashing light signals, 12-foot cantilevered arms, and roadway half-gates. No objections were made to these recommendations, and, on September 2, 1965, a MPSC order was entered, which provided that the additional safeguards would be installed concurrently with the widening of Eight Mile.

When it became apparent that the proposed road widening was going to be continually delayed, Mr. Taylor made an informal inspection in November of 1968. In a memorandum to the MPSC he expressed his opinion that the protective devices were inadequate and suggested that another formal inspection be held. A formal inspection was held on January 17, 1969, and, as a result thereof, Mr. Taylor recommended in a January 29, 1969 report that the MPSC issue an order requiring installation of full roadway gates without waiting for the road widening. Grand Trunk made no objections to this recommendation, but MPSC did not issue an order permitting installation of these gates until March 2, 1970, two weeks after the accident.

I DID THE TRIAL COURT ERR IN DIRECTING A VERDICT FOR DEFENDANT SHORE LINE?

In reviewing a directed verdict against plaintiffs, we must view the facts in the light most favorable to plaintiffs. If these facts are such that reasonable men could honestly reach different conclusions, then the question is for the jury. Humenik v. Sternberg, 371 Mich. 667, 124 N.W.2d 778 (1963), Kroll v. Katz, 374 Mich. 364, 132 N.W.2d 27 (1965).

It is undisputed that the train was traveling with its headlight on bright and its rotating yellow flasher in operation on top of the engine, and that as the train approached the crossing the engineer turned on the engine bell and commenced sounding the regulation engine whistle of two longs, a short, and a long.

The trial judge also found that the testimony conclusively established that the train was going 30 miles per hour, in compliance with the local ordinance. However, in making this determination the judge apparently ignored the testimony of Ronald Magga, an independent eyewitness, who was working at a nearby gas station at the time of the accident. Magga testified that, in his opinion, the train was going between 30 and 40 miles per hour.

This is competent testimony. 'One need not qualify as an expert in order to testify as to matters one learns through ordinary observation, such as the rate of speed * * *.' Hicks v. Bacon, 26 Mich.App. 487, 493, 182 N.W.2d 620, 623 (1970). A Detroit ordinance provides for a maximum speed of 30 miles per hour for trains. Violation of local ordinances is evidence of negligence. Whinnen v. 231 Corp., 49 Mich.App. 371, 212 N.W.2d 297 (1973). Therefore, there was sufficient evidence for it to find negligent operation of the train by defendant Shore Line.

However, even though there was evidence to support a jury determination of negligence, this does not mean that Shore Line is liable for plaintiffs' injuries. Negligence is not actionable unless it is a proximate cause of the injuries for which damages are sought. Perkins v. Texas & N.O.R. Co., 243 La. 829, 147 So.2d 646 (1962), involved a railroad-crossing accident. When the train was about 40--60 feet from the crossing an automobile came into view. The engineer immediately applied the emergency brakes, but the train struck the right side of the vehicle and carried it about 1250 feet. Both occupants of the car were killed. Testimony established that the train was traveling 12 miles per hour over the 25-miles-per-hour speed limit. The court held that the railroad's negligence was not a proximate cause of the accident:

'It is fundamental that negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought. It need not, of course, be the sole cause. Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm. Under the circumstances of the instant case, the excessive speed was undoubtedly a substantial factor in bringing about the collision if the collision would not have occurred without it. On the other hand, if the collision would have occurred irrespective of such negligence, then it was not a substantial factor.

'The burden of proving this causal link is upon the plaintiff. Recognizing that the fact of causation is not susceptible of proof to a mathematical certainty, the law requires only that the evidence show that it is more probable than not that the harm was caused by the tortious conduct of the defendant. Stated differently, it must appear that it is more likely than not that the harm would have been averted but for the negligence of the defendant.

'In the instant case the train engineer testified that at a speed of 25 miles per hour he would have been unable to stop the train in time to avoid the accident. Other facts of record support his testimony in this regard. With efficient brakes, the mile-long train required 1250 feet to stop at a speed of 37 miles per hour. It is clear, then, that even at the concededly safe speed of 25 miles per hour, the momentum mentum of the train would have, under the circumstances, carried it well beyond the crossing.

'Based upon the evidence of record, it appears almost certain that the fatal accident would have occurred irrespective of the excessive speed of the train. It follows that this speed was not a substantial factor in bringing about the accident.' Perkins, supra, 243 La. 829, 835--839, 147 So.2d 646, 648--649.

See, Perch v. New York C.R. Co., 294 Mich. 227, 293 N.W. 778 (1940), Conrad v. Baltimore & O.R. Co., 146 F.Supp. 151 (W.D.Pa., 1956), McAllister v. Tucker, 88 So.2d 526 (Fla.1956).

The facts in the instant case are analogous to those in Perkins. When plaintiffs' automobile stopped on the tracks, the Shore Line train was already crossing the median strip separating the westbound and eastbound lanes, and was only about 50 feet from the car. Engineer Cannon immediately applied the emergency brakes, but was unable to avoid the accident. The train brakes functioned properly and the train made a mechanically perfect stop approximately 600 feet past the crossing. The engineer testified that he would not have been able to avoid hitting the car even if he had been going ten miles per hour. Plaintiffs' expert witness, J. Carl McMonagle, also testified that a train could not stop within a distance of 50 feet whether it was going 30 or 10 miles per...