LaCroix v. Grand Trunk Western R. Co.

• Decision Date: 02 October 1967
• Docket Number: No. 5,5
• Citation: 152 N.W.2d 656,379 Mich. 417
• Parties: Walter H. LaCROIX, Plaintiff and Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 656

152 N.W.2d 656

379 Mich. 417

Walter H. LaCROIX, Plaintiff and Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation Defendant and Appellee.

No. 5.

Supreme Court of Michigan.

Oct. 2, 1967.

Peter E. Bradt, Port Huron, for plaintiff-appellant.

Earl C. Opperthauser, Detroit, for defendant-appellee.

Before the Entire Bench, except BLACK, J.

ADAMS, Justice.

Following an adverse jury verdict and denial of motion for new trial, plaintiff appealed to this Court as a matter of right on January 22, 1964. The case was assigned to the Court of Appeals and the judgment for defendant was affirmed by that Court (2 Mich.App. 151, 139 N.W.2d 134). Plaintiff filed an application for leave to appeal to this Court. Leave was granted as was also appellant's motion for leave to proceed in this Court In forma pauperis.

Plaintiff claims:

1. It was reversible error for the trial court to instruct the jury that a 'violation' of the so-called trespass statute was negligence.

2. It was reversible error for the trial court to refuse to instruct the jury on wilful and wanton misconduct and gross negligence.

The second question will be considered first.

I.

THE ISSUE OF WILFUL AND WANTON MISCONDUCT AND GROSS NEGLIGENCE.

Plaintiff charged defendant with: (1) gross negligence, and (2) wilful and wanton misconduct. The charges are not identical. This has been made clear in the leading Michigan case of Gibbard v. Cursan (1923), 225 Mich. 311, 196 N.W. 398. A 13-year-old girl was killed while walking on a paved country highway on her way home from school when she was overtaken and fatally injured by a motor vehicle driven by defendant. Such conduct was charged to be a wanton, wilful, and reckless act. It was urged that the deceased was guilty of contributory negligence as a matter of law. Plaintiff obtained a judgment in the lower court. On appeal, the question of contributory negligence as a defense to a claim of wilful, wanton, and reckless misconduct was examined in this Court. In an opinion by Justice Clark in which six other members of the Court concurred, Justice Fellows concurring only in the result, it was said:

'In addition to instructing the jury on the theory of claimed negligence of defendants and of claimed contributory negligence of plaintiff, the trial judge defined gross negligence, so called, to be a wanton, willful or reckless act, or a wanton, willful, and reckless failure to perform a duty to another, and said, after stating plaintiff's claims as to facts:

"If you find by the preponderance of the evidence in this case that these are the facts, and that they show gross negligence--if you find that they show gross negligence on the part of the driver, and only slight negligence on the part of the girl, or less negligence than that on the part of the driver, * * * then the plaintiff is entitled to a recovery in this case.'

'The quoted excerpt is said to be error as stating a rule of comparative negligence, not recognized in this state, and it is urged that no case of gross negligence was made out. In the ordinary case of negligence, if the plaintiff has been guilty of negligence, contributing to the injury for which the action is brought, he cannot recover. It is to avoid this rule and to excuse contributory negligence of a plaintiff that the doctrine of gross negligence is usually invoked.

'When will gross negligence of a defendant excuse contributory negligence of a plaintiff? In a case where the defendant, who knows, or ought, by the exercise of ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury. Strictly, this is the basis of recovery in all cases of gross negligence. 20 R.C.L. 145. Such gross negligence is also sometimes called discovered negligence, subsequent negligence, wanton or willful or reckless negligence, discovered peril, last clear chance doctrine, and the humanitarian rule. Other misconduct, different in kind, is also generally and incorrectly known as gross negligence, as we shall see later. Richter v. Harper, 95 Mich. 221, 54 N.W. 768; Kelley v. Keller, 211 Mich. 404, 179 N.W. 237; Fike v. P.M.R. Co., 174 Mich. 167, 140 N.W. 592; Knickerbocker v. Detroit, etc., Ry. Co., 167 Mich. 596, 133 N.W. 504; Buxton v. Ainsworth, 138 Mich. 532, 101 N.W. 817, 5 Ann.Cas. 146.

'The theory of gross negligence is that the antecedent negligence of plaintiff only put him in a position of danger, and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause. Cooley on Torts 674; Labarge v. Pere Marquette R. Co., 134 Mich. 139, 95 N.W. 1073.

'If the plaintiff is in a position which has become dangerous, and he is free from negligence, and the defendant knows, or ought by the exercise of ordinary care to know, of plaintiff's peril, and nevertheless negligently injures him, there is no occasion to invoke the doctrine of gross negligence to excuse negligence of plaintiff, for there is no negligence of plaintiff to be excused. Schnurr v. Detroit United Ry., 222 Mich. 591, 193 N.W. 772.

'If the negligence of a plaintiff is concurrent with the negligence of a defendant, the rule as to antecedent negligence of plaintiff and subsequent negligence of defendant does not apply. The doctrine of gross, subsequent, or discovered negligence may not be invoked to excuse concurrent negligence of a plaintiff. Labarge v. Pere Marquette R. Co., supra; Krouse v. Railway Co., 215 Mich. 139, 183 N.W. 768; Thompson on Neg., § 208; Dyerson v. Union Pac. Ry. Co., 74 Kan. 518, 87 Pac. 680, 7 L.R.A. (N.S.) 132, 152, 11 Ann.Cas. 207; Smith v. Conn. Ry. & Lighting Co., 80 Conn. 268, 67 Atl. 888, 17 L.R.A. (N.S.) 707; Neary v. Northern Pac. Ry. Co., 37 Mont. 461, 97 Pac. 944, 19 L.R.A. (N.S.) 446; Southern Ry. Co. v. Bailey, 110 Va. 833, 67 S.E. 365, 27 L.R.A. (N.S.) 379; Huddy on Automobiles (5th Ed.) 610. And see Richter v. Harper, 95 Mich. 221, at page 225, 54 N.W. 768.

'Nor can it be said that because a defendant's negligence is great, of a comparative or superlative degree, it may therefore be called 'gross,' and that a plaintiff's contributory negligence may, for that reason alone, be excused. The rule of comparative negligence does not obtain in this state. Richter v. Harper, supra; Labarge v. Pere Marquette R. Co., supra.

'If one willfully injures another, or if his conduct in doing the injury is so wanton or reckless that it amounts to the same thing, he is guilty of more than negligence. The act is characterized by willfulness, rather than by inadvertence, It transcends negligence--is different in kind. Where recovery is sought on the theory that the injury was caused by willful, wanton, or reckless misconduct of a defendant, as distinguished from negligence, there is no more reason for permitting the defense of contributory negligence than in a case of assault and battery. True, such misconduct in this state and elsewhere usually has been called negligence, the word being qualified by such adjectives as gross, wanton, reckless, or willful, but this is incorrect and has a tendency to mislead.' (Emphasis supplied.)

The distinction in terms and in conduct pointed out in the Gibbard case has continued to be followed by this Court. In the case of Union Trust Co. v. Detroit, Grand Haven & Milwaukee Railway Co. (1927), 239 Mich. 97, 214 N.W. 166, 66 A.L.R. 1515, a directed verdict for the defendant was affirmed, it appearing that plaintiff's decedent was a passenger in an automobile which went upon the railroad tracks after going around a gate and moving to the wrong side of the street where it was struck by a slowly moving boxcar. It was claimed the defendant was guilty of gross negligence and that the rule of contributory negligence should not be applied. The Court in passing on this contention said:

'* * * we do not have gross negligence in the sense of great or much negligence, because that would introduce into our law the doctrine of comparative negligence which is foreign to this jurisdiction, and * * * while willful and wanton acts are frequently designated as gross negligence, such designation is a misnomer, because such willful and wanton acts are not negligence at all. Upon this record there is no case made of subsequent negligence, nor willful or wanton acts of defendant or any of its servants.'

The case of Finkler v. Zimmer (1932), 258 Mich. 336, 241 N.W. 851, was an action brought by the administrator of an estate. Plaintiff's decedent had died of injuries suffered in a collision of automobiles at an intersection of highways. The opinion of this Court reexamined the rules announced in Gibbard and reaffirmed their statements. The Finkler Case, it should be noted, involved the guest statute.

In the case of Sun Oil Company v. Seamon (1957), 349 Mich. 387, 84 N.W.2d 840, Justice Talbot Smith wrote at length on contributory negligence and the doctrine of intentional harm. After citing and quoting extensively from other cases, he concluded:

'The reasoning behind these cases is clear: Wanton misconduct is a different kind of offense than ordinary negligence, even though it be gross. Fault is involved in both, but in the one the fault of the callous, the brutish, the quasicriminal, in the other the human frailty of lack of care, of inattention, of diversion. These are faults of different hues in the spectrum of human conduct and so the courts have treated them. Our Court should do likewise.'

See Labarge v. Pere Marquette Railroad Co. (1903), 134 Mich. 139, at p. 141, 95 N.W. 1073. See Willett v. Smith (1932), 260 Mich. 101, at p. 104, 244 N.W. 246; and McLone v. Bean (1933), 263 Mich. 113, at p. 115, 248 N.W. 566, which were cases arising under the Michigan guest statute.

See Nunn v. Drieborg (1926), 235 Mich. 383, at p. 386, 209 N.W. 89, where the Court's inquiry as to malice and wilful act was directed to the intent of Congress in creating the...