Kovacs v. Chesapeake and Ohio Ry. Co.

• Decision Date: 16 July 1984
• Docket Number: Docket No. 68420
• Citation: 351 N.W.2d 581,134 Mich.App. 514
• Parties: Rosemary KOVACS, Administratrix of the Estate of Charles L. Kovacs, Deceased, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a foreign corporation, Defendant- Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 581

351 N.W.2d 581

134 Mich.App. 514

Rosemary KOVACS, Administratrix of the Estate of Charles L Kovacs, Deceased, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a foreign corporation, Defendant- Appellant.

Docket No. 68420.

Court of Appeals of Michigan.

Submitted Jan. 5, 1984.

Decided May 14, 1984.

Released for Publication July 12, 1984.

Rehearing Denied July 16, 1984.

[134 Mich.App. 517] C. Robert Beltz, Flint, for plaintiff-appellee.

Cross, Wrock, Miller & Vieson by Gene S. Davis, Craig A. Anderson and Robert E. Casey, Jr., Detroit, for defendant-appellant.

Before BRONSON, P.J., and KELLY and HOFFIUS, ^* JJ.

KELLY, Judge.

Defendant appeals as of right from a jury verdict of $1.5 million in favor of plaintiff, reduced by one-third for the comparative negligence of plaintiff's decedent. We affirm.

FACTS

On September 30, 1976, plaintiff's decedent was struck and killed by one of defendant's trains as he sat in a rented dump truck straddling defendant's railroad tracks. The decedent, 49-year-old Charles L. Kovacs, and John Hibbard, an employee of Copeland Construction Company, were repairing or deepening a ditch into which water drained from Kovacs's property. The ditch ran alongside defendant's railroad tracks. The accident occurred about a mile and a half west of Fowlerville, Michigan, on a country road known as Potts Road. Immediately prior to impact, the train was traveling at a speed of 46 miles per hour and visibility was severely limited because of dense fog.

Plaintiff's complaint alleged that defendant's negligence had caused the death of her husband. The case proceeded to trial on the following claims: (1) defendant was negligent in failing to sound the warning bell and warning whistle as required by law and (2) defendant was negligent in failing to reduce the speed of the train given the absence of appropriate warning signals, the absence of gates or flashers or other warning devices at the Potts Road crossing and the extremely dense fog.

Defendant raises numerous issues on appeal which we consider separately.

ISSUES

I

Defendant first contends that the trial court erred in denying defendant's motion for a directed verdict made at the close of plaintiff's proofs. Defendant's motion was premised on the theory that decedent was a trespasser on defendant's property and the defendant thus owed no duty to decedent other than to exercise reasonable care and diligence after his presence on the tracks was discovered. Because there was no dispute regarding the impossibility of stopping the train within the extremely short distance available once the engineer observed the decedent on the tracks, defendant argues that the trial court erred in not directing a verdict in defendant's favor as a matter of law.

Defendant relies on Kelly v. Michigan Central R. Co., 65 Mich. 186, 31 N.W. 904 (1887), for the proposition that a person who does more than merely walk or travel straight across a railroad track at a public crossing is a trespasser on railroad property for purposes of negligence law. We do not agree with plaintiff's interpretation of Kelly. In Kelly, plaintiff had been walking along defendant's railroad tracks for a quarter to half a mile when he came upon a railroad yard which was intersected by a public road. While in the yard and on the public road, plaintiff was injured by a "stake" connecting an engine on one track with freight cars on another. Apparently the railroad was engaged in a process whereby an engine pushes or pulls a railroad car located on a parallel track by the attachment of a rod or stake to the powerless car. The rods or stakes are barely visible in the darkness or semi-darkness. As plaintiff Michael J. Kelly (the identity of names between that plaintiff and this author is purely coincidental since the author's ancestors were still in Ireland) was walking between two tracks through the yard, he was struck and injured by one of these rods.

The Kelly trial court ruled that the practice of staking constituted negligence on the part of the railroad. On appeal, the Supreme Court disagreed and remanded the case for a new trial.

In its opinion, the Supreme Court discussed the reciprocal rights and duties of pedestrians and railroads:

"The railroad company is the owner of its right of way, and has the right of passage and of use, in the ordinary manner, of its tracks at highway crossings. Likewise do the public have a right of way and of passage across the railroad track to be used and enjoyed in the ordinary manner. These rights are in a sense reciprocal, and must be exercised with a due regard to the rights of each other.

"The right of the public in a highway crossing a railroad is simply a right of passage across the railroad. The public, and no individual thereof, have the right to commit a trespass upon the railroad company's property within the limits of the highway crossing. He cannot interfere with the rails or grounds, or obstruct the tracks, simply because it is in the highway, without committing a trespass. The highway crossing is for the purpose of passage from one side of the railroad to the other, and any other use thereof, whether between the tracks or between the rails, is unwarranted." 65 Mich. 190-191, 31 N.W. 904.

Defendant argues that the "right of passage" language implies that members of the public will be considered trespassers on the rails unless executing a traverse across tracks intersecting a public crossing.

In undercutting defendant's interpretation of the holding in Kelly, we need look no further than Fehnrich v. Michigan Central R. Co., 87 Mich. 606, 49 N.W. 890 (1891), decided only four years after the release of Kelly. In Fehnrich, a 14-year-old boy had been walking along a public street when he came upon railroad tracks intersecting the street. As he was midway over the tracks, the boy decided to pursue an alternate route and took two steps along the tracks when he was struck by a railroad car slowly moving in his direction. The court specifically refused to construe Kelly as authority for the rule that "a man is a trespasser [on a railroad track] unless he travels squarely across them" and instead held that whatever rule of trespass could be gleaned from Kelly was limited to the facts of that case. Kelly has since been cited (1) for the rule that pedestrian and railroad rights to the use of railroad tracks over public crossings are reciprocal and that any use by either party must be in an ordinary manner, Fish v. Grand Trunk Western R. Co., 275 Mich. 273, 266 N.W. 349 (1936), on rehearing 275 Mich. 718, 720, 269 N.W. 568 (1936); (2) for the rule that the railroad is not the insurer of the public's safety, Wiles v. New York Central R. Co., 311 Mich. 540, 19 N.W.2d 90 (1945); and (3) for the rule that railroads own the right-of-way and have first right of passage. Bauman v. Grand Trunk Western R. Co., 376 Mich. 675, 692-693, 138 N.W.2d 285 (1965) (Justice Black's concurring opinion).

In the instant case, decedent was clearly not "squarely traveling" across the railroad tracks when he was struck by defendant's train. According to the testimony of the only eyewitness to the accident, John Hibbard, the two men were engaged for the second consecutive day in clearing away a ditch that drained decedent's fields. Hibbard operated a backhoe which scooped out dirt and debris from the ditch and deposited it in the dump truck which the decedent then drove away to empty. The ditch ran in an east-west direction, parallel to the railroad tracks, and was separated from the tracks by a somewhat narrow strip of land. Potts Road ran in a north-south direction. According to Hibbard's testimony decedent would drive the dump truck north on Potts Road up to and just over the railroad crossing, then back over the tracks, turning the truck at an angle so as to position it on the strip of land between the tracks and the ditch.

Hibbard testified that he arrived at the work site on his second day on the job just after the decedent and observed decedent pull his truck up to and over the tracks as he had done on the previous day. As decedent was backing over the tracks or momentarily stopped on them, Hibbard heard a train whistle for the first time despite the fact that he had approached the crossing with his window down, deliberately listening and looking for signs of a train. When he looked in the direction of the whistle, he saw a train emerging from the fog approximately 50 feet east of the crossing.

Given our interpretations of Kelly and Fehnrich and viewing the evidence in a light most favorable to plaintiff, as we must in reviewing a trial court's denial of a motion for directed verdict, Rickrode v. Wistinghausen, 128 Mich.App. 240, 244, 340 N.W.2d 83 (1983), we cannot say that the trial court erred in refusing to find as a matter of law that the decedent was a trespasser on defendant's property. Decedent's use of defendant's railroad tracks at Potts Road was in an ordinary manner.

Defendant also claims that the trial court erred in refusing to instruct the jury as follows:

"The right of the public in a highway crossing a railroad is simply a right of passage across the railroad, and no individual has the right to commit a trespass upon the railroad company's property within the limits of the highway crossing, which is for the purpose of passage from one side of the railroad to the other, and any other use thereof, whether between the tracks or rails is unwarranted. The right of way and of use, when not used or required for such passage, belongs to the railroad company, and may be used by it in the same manner as if no street crossing was there. Therefore, if you find that plaintiff-decedent, Mr. Kovacs[,] was using the railroad's right of way for a purpose other than as a traveler from one side to the other, then you must find Mr. Kovac's [sic ] was a trespasser."

Given our rejection of defendant's construction of Kelly, we...