Simpson v. Pere Marquette Ry. Co.

• Decision Date: 02 September 1936
• Docket Number: No. 78.,78.
• Citation: 276 Mich. 653,268 N.W. 769
• Parties: SIMPSON v. PERE MARQUETTE RY. CO.
• Court: Michigan Supreme Court

276 Mich. 653

268 N.W. 769

SIMPSON

v.PERE MARQUETTE RY. CO.

No. 78.

Supreme Court of Michigan.

Sept. 2, 1936.

Action by Eileen Simpson against the Pere Marquette Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed.Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Argued before the Entire Bench, except POTTER, J.

John C. Shields and W. K. Williams, both of Detroit (Smith, Searl & Strawhecker, of Grand Rapids, of counsel), for appellant.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for appellee.

WIEST, Justice.

Lucille Herold owned a Model A Ford Roadster, with rumble seat. Saturday afternoon, November 25, 1933, she took four girls, including plaintiff, for a ride in Ann Arbor and a trip to Detroit. On the return to Ann Arbor from Detroit, Miss Herold asked Marian Schultz, who did not have a Michigan driver's license, to drive the car and, while she was driving, there was a collision with a gondola car of defendant company, at rest across the highway at South Lyon, and plaintiff received serious injuries. The railroad car had stood across the highway for more than five minutes. The collision was at night and the visibility was somewhat poor because of mist. Before reaching the railroad track, the driver saw a notice of a railroad crossing ahead, but heard no signal and had no warning other than by view. Plaintiff had verdict and judgment for $18,532.51. Defendant's motion for a new trial was denied. Plaintiff was near twenty-one years of age at the time of the accident and was twenty-one at the time of the trial.

The statute, section 11190, Comp.Laws 1929, provides: ‘Any railroad corporation, or company owning or operating a railroad in this state that shall permit its engines, cars, or trains to obstruct any public street or highway, for a longer period than five (5) minutes at any one (1) time, shall be liable to a penalty for each offense of twenty-five (25) dollars. The penalties provided for each case herein, shall be recovered in an action to be brought in the name of the people of the state of Michigan by the prosecuting attorney of the proper county, in which the offense charged shall have been committed, upon the complaint of the proper authorities of any city, village, or township, or of any citizen injured or aggrieved by the violation by any railroad corporation or company, of the provisions of this act in this section contained.’

Does this statute apply to the accident in suit? Was violation of that statute the proximate cause of the accident? Did the statute impose a duty and consequent liability in case the five-minute rule was not observed?

The purpose of the five-minute rule is to prevent blocking the highway and has no applicability to the alleged negligence in this case.

The driver of the auto says she saw the disc sign of the railroad crossing about 500 feet from the track, slowed down to ten miles an hour and looked ahead to see if there was any train, saw a black streak with lights from the village above and below it, and did not see the car. The car was the black streak across the highway.

Plaintiff evades the rule of imputed negligence of the driver because she was a minor at the time of the accident. Plaintiff claims there was no bell ringing or flagman or warning.

The train had pulled in at South Lyon, and the gondola and other cars were left while the engine was engaged in switching operations, and, at the time of the accident, the train had been coupled up again and the conductor was on his way to the rear ready to signal for it to start.

The position of the railroad car across the highway for more than five minutes was not the proximate cause of the collision in the sense of want of duty of the defendant toward plaintiff. The proximate cause of the accident was the negligence of the driver of the automobile who, with knowldege that she was approaching a railroad crossing, did not observe the obvious fact that a railroad car was across the highway.

Plaintiff can have no recovery against defendant without establishing the fact that it was guilty of negligence which was the proximate cause of the accident. Plaintiff's age may release her from the rule of imputed negligence of the driver and consequent contributory negligence, but all this is of no moment, for there was no actionable negligence on the part of defendant.

In Gage v. Boston & Maine Railroad, 77 N.H. 289, 90 A. 855, 856, L.R.A.1915A, 363, the plaintiff was riding in an automobile and-‘Shortly after midnight, at a crossing north of Tilton, the automobile collided with the fourteenth car of a slowly moving freight train of the defendant. There were no gates, lights, or crossing tender at the crossing. There was evidence that it was a dark night, and somewhat foggy, which prevented the chauffeur from discovering the train upon the crossing until he was within about 35 feet of it. He testified that he was then going about 14 miles an hour, and that when running at that rate he could bring his machine to a stop in about 27 feet, but for some reason he was not able to do so at the time of the collision.’

The court stated:

‘What duty did the defendant owe to the plaintiffs at the time of the collision which it failed to observe, and the breach of which was the proximate cause of the injuries they suffered? The burden was on them to prove that the defendant was negligent in its management of the train at the crossing, and that its negligence in that respect was a proximate cause of the collision. At the trial the plaintiffs' contention was that the defendant's negligence could be found from its omission to provide gates with lights at the crossing, or in not having at that place a crossing tender to warn travelers that the crossing was occupied by the train. There is no contention that these precautions would be necessary in the daytime, or at any time when the occupation of the crossing by one or more cars would be visible to a traveler in time to allow him to stop before reaching the crossing. When cars are upon a crossing under such circumstances the fact that they are there is a sufficient warning to the traveler upon the highway that he cannot occupy the crossing at the same time. No other signals or warnings are necessary or required in the absence of a statute imposing such a duty upon the railroad. As there is no statute or municipal regulation requiring the defendant to provide lights at this crossing the mere fact that there were none on the night of the accident does not prove the negligence of the defendant. * * *

‘The question whether, if the collision was due to the combined negligence of the defendant and the chauffeur whom the plaintiffs employed to transport them from Laconia to Franklin, the negligence of the latter could be imputed to the plaintiffs and precludes their recovery in this action (Noyes v. Boscawen, ...