Serratoni v. Chesapeake and Ohio Railway Company

• Decision Date: 23 June 1964
• Docket Number: 15451.,No. 15450,15450
• Parties: Teresa SERRATONI, as Administratrix of the Estate of Lois Jane Zatek, Deceased, Plaintiff and Appellant, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a foreign corporation, Defendant and Appellee. Eugene LUDWIG, as Guardian of the Estate of Richard Paul Zatek, a minor, Teresa Serratoni, as Administratrix of the Estate of Joan Ellen Zatek, Deceased, Teresa Serratoni, as Administratrix of the Estate of John Michael Zatek, Deceased, John Zatek and Wolverine Insurance Co., a Michigan corporation, as subrogee of John Zatek, Plaintiffs and Appellants, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a foreign corporation, Defendant and Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

333 F.2d 621 (1964)

Teresa SERRATONI, as Administratrix of the Estate of Lois Jane Zatek, Deceased, Plaintiff and Appellant, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a foreign corporation, Defendant and Appellee.

Eugene LUDWIG, as Guardian of the Estate of Richard Paul Zatek, a minor, Teresa Serratoni, as Administratrix of the Estate of Joan Ellen Zatek, Deceased, Teresa Serratoni, as Administratrix of the Estate of John Michael Zatek, Deceased, John Zatek and Wolverine Insurance Co., a Michigan corporation, as subrogee of John Zatek, Plaintiffs and Appellants, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a foreign corporation, Defendant and Appellee.

Nos. 15450, 15451.

United States Court of Appeals Sixth Circuit.

June 23, 1964.

Frederick D. Jasmer, Detroit, Mich., Cassese, Batchelder, Jasmer & Evanski, Detroit, Mich., on brief, for appellants.

Robert A. Straub, Detroit, Mich., James R. Gannon, Detroit, Mich., on brief, for appellee.

Before MILLER, PHILLIPS and EDWARDS, Circuit Judges.

EDWARDS, Circuit Judge.

These appeals arise out of a tragic grade crossing accident where a mother and three of her children were in an automobile when it stalled on The Chesapeake & Ohio Railway tracks in the path of an 80-car freight train. The train crushed the car; killed the mother, who was driving; killed two of her children, and injured the third. These suits for wrongful deaths and injury were filed by representatives of the estates of the three deceased persons and the injured minor in the United States District Court for the Eastern District of Michigan, Southern Division, jurisdiction being established by diversity of citizenship.

At trial a Federal court jury in Detroit returned verdicts for the defendant in the driver's case, and for the plaintiffs in the case of the passengers. The jury verdicts for plaintiffs were set aside by the United States District Judge, and judgments non obstante veredicto were entered for defendant. Plaintiffs appealed in all cases, with the children's cases consolidated into one appeal.

The accident occurred at 4:30 p. m., June 16, 1961, on Middle Belt Road at the five-track C & O grade crossing in the City of Livonia. The crossing protection consisted of flasher signals and automatic short-arm gates. The train was a three-engine diesel pulling defendant's daily unscheduled freight train No. 52, consisting of 79 cars and a caboose, and approaching Detroit from the west.

The deceased driver, Mrs. Zatek, and her three children were in a station wagon headed south on Middle Belt Road. As she approached the crossing an automatic switch, located 3,018 feet west of the crossing, was actuated by the freight engine and the flashers commenced and the gates began to come down. The exact relationship of these events to Mrs. Zatek's progress are in dispute. But three eyewitnesses all indicated that her car passed the gate and came to a stop on the track after the gate had started down.

Testimony also established that Mrs. Zatek and her children remained in the station wagon directly in the path of the oncoming freight train until the crash occurred — a matter of twenty seconds or more.

Witnesses testified that during these intervening seconds Mrs. Zatek appeared to be turning the ignition key as if to attempt to start the motor; that the car "bucked" or "jerked" but did not move out of position. One witness thought he saw "puffs of exhaust."

A part of this tragic story is undisputed evidence that Mrs. Zatek had been driving an automobile for a period of only two weeks and was driving on a temporary driver's permit at the time of the fatal crash.

Estimates of the speed of the train varied from 55 m. p. h., by the train engineer, to 67 m. p. h., based on computations by plaintiffs' expert witness, a mechanical engineer. An eyewitness to the collision, an automotive test development engineer, testified that the train was going 65 m. p. h. This same witness stated that he did not observe any noticeable deceleration of the train until after the moment of impact.

Plaintiffs' expert witness, however, also testified that he had inspected the tachometer of this train, which kept a running speed tape, and that it showed a speed of 59 m. p. h.

Although the engineer and fireman involved were in the courtroom during the trial, they were not called on to testify by either party. However, plaintiffs' attorney on direct examination elicited the following from the first police officer who reported to the scene:

"Q. Did you ask the engineer what happened?

"A. Yes.

"Q. Did he make a statement to you as to what occurred?

* * * * * *

"A. He stated that he whistled at the whistle post, which is approximately 1350 feet west of the intersection, and that he applied full emergency brake while he was about three car lengths east of that whistle post, which would be approximately 1200 feet west of the crossing. The train stopped about a half a mile east of the crossing."

Plaintiffs also presented an expert witness who testified that by his measurements the lead engine stopped 2,632 feet east of and past the intersection, and assuming a 60 m. p. h. speed, he calculated that the brakes had been applied 954 feet west of the crossing.

The evidence disclosed that the train crew on the fatal sunny afternoon had a straight and clear view of the crossing from as far away as 5,000 feet.

The crossing is located in Livonia, Michigan, a suburb adjacent to and northwest of Detroit. In 1960 its population was 66,700, an increase of 49,200 over the 1950 census figure.

The area surrounding the crossing houses a number of industrial and commercial sites, as well as a large residential area one-half mile from the crossing.

A traffic count taken shortly after the accident showed that 27,493 vehicles a day passed over this highway at a point located one-half mile south of this crossing.

In the general area of the crossing are found a grocery warehouse and store, an automotive laboratory, a building supply store, and a feed store. A large racetrack and parking area therefor is nearby, as is an automobile production plant and a large shopping center. Traffic from these sites is serviced by the four-lane highway in question. The crossing itself was described by the police officer witness as "pretty much open." On the afternoon of the accident the racetrack was in operation, and witnesses described traffic as "fairly crowded" — "fairly heavy."

Under state regulation the railroad had been required six years before this accident to install automatic short-arm gates and flasher signals at this crossing, in addition to the regular cross-buck railroad crossing signs.

In this case it is undisputed that all the warning and protective devices required by law and specified by the Public Service Commission were operating properly on the date of the fatal accident. This included the air horn on the diesel engine, which all of the witnesses testified to hearing blow.

On these facts the trial judge denied a motion for directed verdicts, holding that there were issues of fact which established jury questions both as to defendant's negligence and the driver's contributory negligence.

He charged the jury to consider the plaintiffs' negligence claims under only two issues:

"The only grounds now relied on by plaintiffs to establish negligence on the part of the defendant, as I have already mentioned, are, first, that the defendant railroad operated its train at an excessive speed and, second, that the engine crew for whose acts the defendant is responsible failed to keep a proper and adequate lookout for traffic on Middle Belt Road.

"The plaintiffs do not now claim any failure on the part of the defendant railroad in maintaining or operating adequate and required traffic protection devices at the crossing, including the timing of such devices, and, therefore, I instruct you to disregard any testimony with respect thereto.

"There was no statute or city ordinance placing a speed limit on the train involved in this collision on June 16, 1961, but, nevertheless, under the law, the train must be run at a reasonable speed and with that degree of care and prudence required for the safety of the lives and property of those engaged in the operation of the train by the railroad and also of those persons likely approaching and traveling over the crossing.

"What is a reasonable speed depends on the nature of the crossing and other circumstances of the case. The rate of speed that would be entirely safe under some conditions may, however, be improper under other conditions, and it is for you as judges of the facts to determine whether or not the speed which the train was operated at this crossing was negligent under all the circumstances in this case, such as the nature of this crossing on the day and at the time of this collision, including the length of warning time provided to motorists by the timing pattern or gates and flashers.

"There is a duty on the part of the train crew to keep a proper lookout in the case of an approach to a public crossing. The lookout must be one as is reasonable and proper under all the circumstances involved at the time and place involved, including the speed of the train and such conditions as may then exist at the crossing."

He also charged as to the nature of contributory negligence and its applicability in the driver's case, and its inapplicability under Michigan law to the cases of the minor children passengers.

He also charged that there was no state statute or ordinance of the City of Livonia which imposed a legal speed limit upon defendant's trains at the crossing in question.

As we have noted, the jury returned a verdict for the defendant railroad as to the first case brought by the administratrix of the estate of the deceased driver-mother. It also returned verdicts totaling $56,000 in the children's cases — most of this sum being awarded for the benefit of the seriously injured surviving child.

Subse...