Riste v. Grand Trunk Western R. Co., 57

• Decision Date: 01 October 1962
• Docket Number: No. 57,57
• Citation: 368 Mich. 32,117 N.W.2d 161
• Parties: James RISTE, Plaintiff and Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 161

117 N.W.2d 161

368 Mich. 32

James RISTE, Plaintiff and Appellant, v.GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant and Appellee.

No. 57.

Supreme Court of Michigan.

Oct. 1, 1962.

Ernest F. Hapke and Albert Lopatin, Detroit, for plaintiff and appellant.

Varnum, Riddering, Wierengo & Christenson, Grand Rapids (F. William Hutchinson and Peter Armstrong, Detroit, of counsel), for defendant and appellee.

Before the Entire Bench.

BLACK, Justice(for affirmance).

This case was assigned to the writer August 30 last.In pursuance of such assignment the following proposed opinion is submitted to other members of the Court this 14th day of September 1962.

Plaintiff's suit is for negligence.He claimed and testified that his shoe became caught as presently indicated where defendant's tracks crossed Lafayette avenue in Grand Rapids; that defendant's freight train was approaching the crossing a considerable distance away with full visibility and ample time for discovery by the engineer and fireman of his predicament; that the engineer and fireman failed to act preventively with respect to such visible and discoverable peril when ample time intervened for such discovery and prevention and, on account thereof, that his left leg was run over and thereafter amputated some 6 inches above the knee.

The case was tried to court and jury and resulted in a verdict for defendant.Following entry of judgment upon the verdict plaintiff moved for a new trial.We quote as follows from the trial judge's helpfully comprehensive opinion by which the motion wad denied:

'This case was well prepared and well tried by competent and experienced lawyers.The taking of the testimony occupied three days.We certainly cannot start out with the assumption that juries are prejudiced against plaintiffs who have lost a leg or in favor of railroad companies.

'The plaintiff's testimony, if believed, established that the accident occurred when plaintiff caught his shoe in a flangeway between a rail and the plank of a pedestrain crossing and was unable to extricate the same before being run over by defendant's train.

'Defendant's evidence was to the effect that the accident could not have happened in this manner for four reasons:

'(1) Had plaintiff been in the position claimed, defendant's engineer and fireman would have seen him and they did not do so although maintaining a careful lookout;

'(2) The conditions of plaintiff's shoe;

'(3) The fact that the pilot on the engine (cow-catcher) would have injured other portions of plaintiff's body had he been in the position claimed;

'(4) If the entire train had run over plaintiff's leg, as claimed, it would have wholly severed the leg and that the leg was not wholly severed.

'As will appear, there was only one issue with respect to liability submitted to the jury--did the accident happen as plaintiff claimed it did?The jury found for defendant and, therefore found that plaintiff failed to satisfy it of the truth of his claims.

'The issue was one of fact and was for the jury and not for the court to decide.The burden of proof was on the plaintiff.The jury had a right to disbelieve him, Green v. D. U. R., 210 Mich. 119[177 N.W. 263];Rogers v. City of Detroit, 340 Mich. 291[65 N.W.2d 4848]. * * *

'The trial judge became convinced that if the accident happened as plaintiff claimed it did, defendant was liable because defendant's witnesses, the engineer and the fireman, testified in substance that if plaintiff had benn at the crossing with his foot caught in the flangeway, they could and would have seen him and stopped the train in time to avoid the accident.Accordingly, the court believed that if plaintiff was there as he claimed, defendant was clearly guilty of discovered negligence in failing to stop the train and to avoid the accident.

'The matter was discussed with counsel in the absence of the jury.Defendant's counsel did not agree, urging that there was an issue of contributory negligence to go to the jury.Plaintiff's counsel, however, did agree and the jury was instructed accordingly.It, therefore, became unnecessary to submit to the jury the fine points of the law relating to defendant's negligence, plaintiff's contributory negligence and defendant's discovered negligence.Nor was there any point in instructing them with regard to the socalled emergency rule.'

First: Plaintiff charges that reversible error resulted from denial below of his request to charge No. 7.The request reads:

'The court instructs you that the law does not require a man to act reasonably in situations of emergency and if you find that the plaintiff, as the train approached the crossing, had caught his foot in the flangeway and was unable to extricate his foot in his struggle to do so before the arrival of the train, and if you further find that the condition of the flangeway was due to the negligence of the defendant, notwithstanding that the plaintiff might have extricated his foot from the flangeway by unlacing his shoe, the fact that he did not do so will not bar his recovery and...