Johnson v. New York Cent. R. Co.

• Decision Date: 01 October 1958
• Docket Number: No. 45,45
• Citation: 97 N.W.2d 769,357 Mich. 40
• Parties: George E. JOHNSON, Plaintiff and Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, a Michigan Corporation, Defendant and Appellee. ,
• Court: Michigan Supreme Court

Page 769

97 N.W.2d 769

357 Mich. 40

George E. JOHNSON, Plaintiff and Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, a Michigan Corporation Defendant and Appellee.

No. 45, Oct. Term, 1958.

Supreme Court of Michigan.

July 13, 1959.

Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids, Edward D Wells, Grand Rapids, of counsel, for plaintiff-appellant.

McKone, Badgley, Domke & Kline, Jackson, for defendant-appellee.

Before then Entire Bench.

KAVANAGH, Justice.

Plaintiff brought this action to recover from defendant railroad company for personal injuries suffered when defendant's passenger train collided with plaintiff employer's tractor and trailers loaded with 7,890 gallons of gasoline. This equipment was being driven by plaintiff in a westerly direction over an angle crossing known as Rex or White's Crossing, about 8 miles east of Kalamazoo, where defendant's railroad tracks intersect US-12A.

The accident occurred about 2 p. m., on a bright chilly day, on November 30, 1951.

Plaintiff alleged in his declaration that the defendant's employees were negligent in operating and causing to be operated its train at a high and reckless rate of speed; that defendant was negligent in maintaining a dangerous and hazardous crossing; that defendant's employees negligently failed to warn plaintiff of the approach of defendant's Mercury passenger train from the east although they were aware it was due; that defendant's employees were negligent in that they placed a switch engine at the intersection which activated the warning signals at the crossing; that defendant negligently failed to station a guard at the intersection.

Plaintiff's declaration further alleged that defendant's engineer on the Mercury passenger train was negligent in releasing the brakes on the train at a time when the engineer knew or should have known that in so doing a collision would result; that defendant's train failed to avoid a collision with the vehicle operated by plaintiff when the same could have been done with the use of ordinary care. Plaintiff further averred that he had exercised reasonable and proper care; that he was not guilty of negligence contributing to the accident; and that defendant employees' negligence was the proximate cause of the accident and his resulting injuries.

Defendant by answer denied negligence on the part of its employees and alleged that plaintiff was guilty of contributory negligence in that plaintiff had failed to make proper observation before attempting to cross the railroad tracks.

Defendant urges that plaintiff failed to comply with Michigan Public Service Commission Rule No. 43, which provides as follows:

'No driver of any motor vehicle under certificate or permit from this commission, shall drive such vehicle across railroad tracks at grade without first bringing the vehicle to a full stop and shall not proceed until he shall have determined that it is safe to cross.' (1954 Administrative Code, No. R 460.122, p. 5631.)

Defendant further urges that plaintiff failed to comply with C.L.S.1956, § 257.669 (Stat.Ann.1952 Rev. § 9.2369), which provides as follows:

'(a) The driver of any motor vehicle carrying passengers for hire, or of any school bus carrying any school child, or of any vehicle carrying explosive substances or flammable liquids as a cargo or part of a cargo, or any motor vehicle weighing over 10,000 pounds, including the load thereon, before crossing at grade any track or tracks of a railroad, shall stop such vehicle within 50 feet but not less than 10 feet from the nearest rail of such railroad and while so stopped shall listen and look in both directions along such track for any approaching train, and for signals indicating the approach of a train, except as hereinafter provided, and shall not proceed until he can do so safely. After stopping as required herein, and upon proceeding when it is safe to do so the driver of any said vehicle shall cross only in such gear of the vehicle that there will be no necessity for changing gears while traversing such crossing and the driver shall not shift gears while crossing the track or tracks.

'(b) No stop need be made at any such crossing where a police officer or a traffic-control signal directs traffic to proceed.'

Defendant contends that plaintiff violated this statute and public service commission rule and was, therefore, guilty of contributory negligence as a matter of law.

The case was tried before a jury for nearly three days. At the conclusion of plaintiff's proofs defendant moved for a directed verdict on the grounds that: 1) no negligence on the part of defendant had been proved; 2) under the record as it then stood plaintiff was guilty of contributory negligence as a matter of law; 3) there was no evidence of any kind which would justify submitting the question of subsequent negligence to the jury.

The trial judge, apparently agreeing with all three reasons, directed a verdict of no cause for action and judgment was entered accordingly. From this judgment plaintiff makes his appeal to this Court on three grounds:

1) Is there a question of fact for the jury as to whether the defendant was guilty of negligence on the following issues:

2) Whether the passenger engineer of the defendant used due care and caution under the circumstances then and there existing.

b) Whether the crew on the switching locomotive, which was standing near the crossing activating the flasher signal, used due care and caution under the circumstances then and there existing.

2) Is there a question for the jury whether the passenger engineer was guilty of subsequent negligence under the circumstances then and there existing?

3) Is there a question for the jury whether plaintiff was guilty of contributory negligence under the circumstances then and there existing?

The law is well established that on an appeal from a directed verdict in favor of the defendant at the conclusion of plaintiff's proofs the testimony must be viewed in a light most favorable to the plaintiff.

In Hammerbacher v. Babechenko, 348 Mich. 139, 150, 82 N.W.2d 456, 462, the Court said:

'Testimony and all legitimate inferences therefrom must be viewed in the light most favorable to plaintiff in determining whether denial of defendant's motion for directed verdict was proper-Douglas v. Holcomb, 340 Mich. 43, 64 N.W.2d 656.'

In Levesque v. LaFortune, 348 Mich. 443, 445, 83 N.W.2d 333, 334, the Court said:

'In appeal from judgment entered for defendants under the statute, as here, we are bound, however, to view the testimony in the light most favorable to plaintiff and to draw the reasonable inferences therefrom which are in his favor. Warwick v. Blackney, 272 Mich. 231, 261 N.W. 310; Paw Paw Depositors Corp. v. John W. Free State Bank, 278 Mich. 637, 270 N.W. 815; Poundstone v. Niles Creamery, 293 Mich. 455, 292 N.W. 367; Longfellow v. City of Detroit, 302 Mich. 542, 5 N.W.2d 457; Savas v. Beals, 304 Mich. 84, 7 N.W.2d 231; Routhier v. City of Detroit, 338 Mich. 449, 61 N.W.2d 593, 40 A.L.R.2d 1114.'

In Wadsworth v. New York Life Insurance Company, 349 Mich. 240, 84 N.W.2d 513, the syllabi read:

'1. The Supreme Court examines the record on appeal from directed verdict And judgment for defendant at close of plaintiff's case to see whether there was competent evidence from which the jury could have found for plaintiff.

'2. A jury may draw reasonable inferences from the established facts and circumstances, in the absence of direct proofs.'

See, also, Lane v. B & J Theatres, Inc., 314 Mich. 666, 23 N.W.2d 120; Michigan Fire & Marine Insurance Co. v. Pretty Lake Vacation Camp, Inc., 316 Mich. 197, 25 N.W.2d 166; Cole v. Austin, 321 Mich. 548, 33 N.W.2d 78; Greenberg v. Greenberg, 337 Mich. 390, 60 N.W.2d 142; Hopkins v. Lake, 348 Mich. 382, 83 N.W.2d 262; Stewart v. Eldred, 349 Mich. 28, 84 N.W.2d 496; Indiana Lumbermens Mutual Insurance Co. v. Matthew Stores, Inc., 349 Mich. 441, 84 N.W.2d 755; Shandor v. Lischer, 349 Mich. 556, 84 N.W.2d 810.

In light of these decisions, it is necessary to relate at some length facts the proofs developed during the course of the trial in order to properly understand a disposition of the questions presented in this case.

At the time and place aforementioned plaintiff was driving his tractor and equipment over an angle railroad crossing. The equipment was loaded with 7,890 gallons of gasoline that was to be delivered in Kalamazoo. The over-all length of the equipment from the front bumper to the rear bumper of the 4 wheel trailer was about 50 feet, and the equipment was about 8 feet wide.

Plaintiff had left a plant at Jackson, Michigan, and followed US-12, branching off on US-12A near Comstock, and approached the railroad tracks on a highway which runs parallel to the tracks, crosses the tracks at an angle in a northwesterly direction, and then runs to the west again parallel to the tracks.

Plaintiff approached the crossing from the east. When about one block east of the crossing he noticed the crossing signal flashers blinking. He coasted up and stopped his equipment with the front end about 15 feet from the planking of the tracks. At this particular crossing there are two sets of rails and the distance from outer rail to outer rail is 41 feet. It is a distance of 58 feet on the angle from the most southerly rail to the most northerly rail. From the place where the truck stopped, it would have to travel a distance of about 128 feet (5 feet plus 15 feet plus 50 feet plus 58 feet equals 128 feet) before the rear would clear the northerly rail, and about 133 feet for it to clear the planking along the north edge of the rail. This distance is computed as follows: 5 feet of planking; 15 feet from place stopped in back of planking; length of equipment: 50 feet; crossing: 58 feet.

When plaintiff pulled up and stopped he noticed the flasher lights blinking and heard the bell ringing. While stopped he noticed a switch engine...