Papajesk v. C & OR. Co.

• Decision Date: 02 December 1968
• Docket Number: No. 3,Docket No. 2945,3
• Citation: 14 Mich.App. 550,166 N.W.2d 46
• Parties: Margie J. PAPAJESK, Administratrix of the Estate of Fred M. Papajesk, Deceased, Plaintiff-Appellant, v. C & O RAILROAD CO., a Virginia corporation and Thomas Laverty, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 46

166 N.W.2d 46

14 Mich.App. 550

Margie J. PAPAJESK, Administratrix of the Estate of Fred M Papajesk, Deceased, Plaintiff-Appellant, v. C & O RAILROAD CO., a Virginia corporation and Thomas Laverty, jointly and severally, Defendants-Appellees.

Docket No. 2945.

Court of Appeals of Michigan, Division No. 3.

Dec. 2, 1968.

Leave to Appeal Denied March 19, 1969.

Released for Publication March 27, 1969.

Peter F. Cicinelli, Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw, for appellant.

Robert A. Straub, Detroit, Rolland N. Montgomery, Saginaw (of counsel), Weadock & Montgomery, Saginaw, for appellees.

Before McGREGOR, P.J., and HOLBROOK and KAUFMAN, ^* JJ.

KAUFMAN, Judge.

This appeal brings to the fore one of the most misunderstood doctrines in the law of negligence. There is apparent confusion in almost every cited case regarding the doctrine of gross negligence.

The facts in this case can appear rather complicated due to the complexity of the switching area where the incident occurred which gave rise to this dispute. For the purpose of this decision, they may be somewhat simplified as follows:

Plaintiff's decedent was killed on February 5, 1962, between 10 and 11 a.m., when he was struck from the rear by some railroad gondola cars which were being pushed or shunted by defendants down a railroad track located on the 'river dock' of Chevrolet Gray Iron Foundry in Saginaw. Plaintiff's decedent, Fred Papajesk, was the dock foreman in this area which adjoined the Saginaw River and is owned by General Motors Corporation which was the employer of Plaintiff's decedent. There are numerous railroad tracks, piles of coal, iron and other material stacked in large mounds throughout the area.

Each day, defendant railroad would appear on the scene with a crew and perform certain switching operations. Plaintiff's decedent was in charge of the loading and unloading of the boats, and the movement of the railroad cars.

February 5, 1962, was a cold any windy day with snow and ice on the ground and snow flurries in the air when the railroad crew came to work around 9:30 a.m. Their assignment was to take some railroad gondola cars out of track where they had been sitting and place them elsewhere. The train engineer with the engine pulled out six gondola cars, five of which were empty, and then pushed or shunted the five empties down the 'lead' track. The rolling gondola cars struck Fred Papajesk while he was walking along the east edge of the 'lead' track. He was struck from the rear, apparently before he realized the cars were approaching. It appears from the testimony in the case that rolling cars can in the wintertime roll quite silently, especially when the tracks are wet. Also there were other noises in the general vicinity which could have affected his hearing. Plaintiff's decedent died as a result of injuries sustained in this accident without regaining consciousness.

Plaintiff's complaint charged the defendant with negligence and gross negligence in (1) failing to keep a proper lookout for persons on the premises so as not to injure them (2) switching the gondola cars in a negligent matter, and (3) failing to warn plaintiff's decedent of the fact that the railroad cars were being pushed toward him from his rear. The jury rendered a verdict for no cause for action in favor of defendant and from this verdict and subsequent denial of a motion for a new trial, plaintiff brings this appeal. Numerous claims of error are made and the Court will comment and rule on each as may be necessary.

Plaintiff contends that the trial judge erroneously eliminated the theory of gross negligence from the case in submitting the case to the jury on the issues of defendants' alleged negligence and plaintiff's decedent's alleged contributory negligence.

Defendants' argument that the theory of gross negligence was not properly pleaded is not well taken. Paragraph XII of the complaint expressly alleges gross negligence which defendants deny in their answer at paragraph 12. The plaintiff requested numerous instructions on this theory and complied with GCR 1963, 516.2 to save the question for appeal.

This brings us to the question raised on appeal as to the precise meaning of the term 'gross negligence'. Many of the authorities have expounded on the definition of gross negligence, and some of the older cases seem to confuse more than clarify. No small amount of the confusion stems from the notion that gross negligence is higher in degree and greater in culpability than simple or ordinary negligence. Gross in the sense of large as in some jurisdictions, including Michigan in some of the earlier cases, being taken literally to mean a negligence more extreme than ordinary negligence. It is well settled in Michigan since Gibbard v. Cursan (1923), 225 Mich. 311, 196 N.W. 398, that this jurisdiction does not recognize different degrees of negligence nor the doctrine of comparative negligence. The recent case of LaCroix v. Grand Trunk Western Railroad Company (1967), 379 Mich. 417, 427, 428, 152 N.W.2d 656, 660 carefully analyzed the Gibbard case and held: 'We conclude that Gibbard's definition of gross negligence and wanton and willful misconduct are the applicable common law in Michigan today.' The terms gross negligence and willful, wanton or reckless misconduct have at times been used carelessly as synonyms. An old case Schindler v....