McParlan v. Grand Trunk W. R. Co.

• Decision Date: 10 December 1935
• Docket Number: No. 22.,22.
• Citation: 273 Mich. 527,263 N.W. 734
• Parties: McPARLAN v. GRAND TRUNK WESTERN R. CO.
• Court: Michigan Supreme Court

273 Mich. 527

263 N.W. 734

McPARLAN

v.GRAND TRUNK WESTERN R. CO.

No. 22.

Supreme Court of Michigan.

Dec. 10, 1935.

Action by Elaine Marie McParlan, by Catherine Kelly, next friend, against the Grand Trunk Western Railroad Company. Judgment for plaintiff, and defendant appeals.

Reversed without new trial.

Appeal from Circuit Court, Muskegon County; John Vanderserp, judge.

Argued before the Entire Bench.

H. V. Spike and W. W. MacPherson, both of Detroit, and E. C. Farmer and Lou L. Landman, both of Muskegon, for appellant.

Sharkoff & Wierengo and Henry L. Wierengo, all of Muskegon, for appellee.

FEAD, Justice.

Plaintiff had verdict and judgment for personal injuries. As plaintiff is a minor, to whom the contributory negligence of her driver cannot be imputed, the principal question is whether defendant was guilty of negligence.

About 1 o'clock in the morning of February 19, 1934, Joseph Loseth drove his automobile into a freight train crossing Lake Shore drive in the city of Muskegon and plaintiff, eighteen years of age, his passenger, was injured.

The railway had been little used for many years until about six months before the accident, when traffic became heavy, especially at night, because defendant had installed a car ferry service at Muskegon. To avoid running the heavy locomotive on the ferryboat, four flat cars were run ahead of the engine. The crossing was unobstructed, with a clear view to the right and left. A railroad crossing sign is located about 30 feet east of the track, is 8 feet high, but is said to be too high to be seen in the light range of car dimmers. Sixty-five feet east of the track, at the intersection of McCracken avenue, is a city street light 24 feet above the pavement. The train was backing south at 4 to 6 miles per hour, with headlight on the rear of the tender, with bell ringing, and the whistle had been blown. The tender, locomotive, and flat cars had passed over Lake Shore drive, which crosses the track at right angles. Plaintiff claims the Loseth car struck a box car next following the flat cars. Defendant claims it struck the ninth car.

Plaintiff, Loseth, and another man were in the front seat of the automobile and two men occupied the rumble seat. They were going home from a party. The night was clear, cold, and dark. The street was icy and slippery. The windshield of the car was frosted so that none of the passengers could see ahead. With a salt bag the driver kept a clear space in front of himself on the windshield.

Loseth and plaintiff were familiar with the crossing and knew trains were run at night. They approached from the east on Lake Shore drive at a speed said by Loseth to have been 25 miles per hour and by plaintiff between 20 and 30 miles per hour. They knew when they entered Lake Shore drive, but say they did not know their exact location thereafter. Loseth was driving with his headlights dimmed and could see 50 to 75 feet ahead. However, he stated that his car lights were overpowered by the street lights were he came to the McCracken light there was a space in which he could not see beyond and he did not see the train until he was about 25 feet from it; he saw a dark object ahead of him, he tried to stop, swung to the right, but his car skidded on the icy pavement and crashed against the train.

Over objection, plaintiff introduced testimony of two drivers who had had similar accidents at the, crossing, of which defendant had had notice. One stated that on December 26, 1933, about 1:30 of a cold, dark night and on a slippery road, he approached the crossing from the east, his eyes were partly blinded after coming out from under the McCracken street light, he could not see as well as in the lighted place, and did not see the train, which was not moving, until he was 10 feet from it. The other said that his accident occurred at 3 o'clock of a cold morning in February, 1934; his windshield was frosted; the train was moving; the street was slippery, and he first saw the train when about 5 feet from it. Neither testified to his rate of speed or the condition of his headlights or the care of his observations ahead.

Plaintiff presented no testimony of observations at or about the McCracken street light with reference to the distance an ordinarily careful person would see ahead. Defendant produced photographs and witnesses indicating that at the street light one has a clear vision of 150 feet, sufficient to see a person walking. It is not disputed that the crossing had all the protective devices and the trainmen gave all the signals required by statute or order of officers thereunder.

The theory of defendant's negligence, as claimed by plaintiff and submitted to the jury, is summed up in the following instruction: ‘So I charge you that if you find because of the special circumstances existing in this case, such as the fact that this crossing was used extensively by the traveling public and necessarily frequently presented a point of danger, and that owing to the nearby situation of lights and the manner in which the train was operated by the use of use of dummy flat-cars followingthe engine, or other natural obstructions which afforded less than ordinary opportunity of observation of a train approaching or crossing such grade crossing and other like circumstances of a special nature, it was reasonable that the railroad company should provide special safeguards to persons using the crossing in a prudent and cautions manner, and the law authorized you...