Walsh v. Grand Trunk Western R. Co., 33

• Decision Date: 21 September 1961
• Docket Number: No. 33,A,33
• Citation: 110 N.W.2d 799,363 Mich. 522
• Parties: Margaret WALSH, Administratix of the Estate of Michael Henry Walsh, Plaintiff and Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a Michigan corporation, Defendant and Appellee. pril Term.
• Court: Michigan Supreme Court

Page 799

110 N.W.2d 799

363 Mich. 522

Margaret WALSH, Administratix of the Estate of Michael

Henry Walsh, Plaintiff and Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a Michigan

corporation, Defendant and Appellee.

No. 33, April Term.

Supreme Court of Michigan.

Sept. 21, 1961.

Robert W. Moss, Detroit, for plaintiff and appellant.

Matthews, Nank & Bruff, Mount Clemens, Forbes B. Henderson, Richard M. Kippen, Detroit, for defendant and appellee.

Before DETHMERS, C. J., and CARR, KELLY, SMITH, BLACK, EDWARDS, KAVANAGH and SOURIS, JJ.

PER CURIAM.

The essential circumstances of this case, taken exclusively from plaintiff's brief-submitted statement, disclose that plaintiff's decedent drove his eastbound automobile into the side of defendant's southwesterly bound freight train, striking the thirty-first car thereof, and that he came thus to his death. The collision occurred at grade on Fifteen Mile road, some 500 feet west of railroad-paralleling highway M-97, during the nighttime. It and the events leading thereto were not witnessed, save only as to the decedent, and the question whether defendant was shown as having been actionably negligent turns upon contention of counsel as follows:

'Plaintiff-appellant contends that the 60 degree angle of intersection of the county road and the railroad track in the case under consideration was a physical fact which caused that intersection to be hazardous to persons lawfully using the road, thereby requiring the defendant railroad to provide flasher lights, gates or some other signal or warning device in addition to the wooden crossbuck sign located near the track. Whether the grade crossing was hazardous or the striking angle of intersection was such a 'special circumstance' that would create a duty in the defendant railroad to provide additional safety devices, is the fact question which should have been submitted to the jury.'

Cited in principal support are Staal v. Grand Rapids & Ind. R. R. Co., 57 Mich. 239, 23 N.W. 795 and McParlan v. Grand Trunk W. R. Co., 273 Mich. 527, 263 N.W. 734, 736. Neither case helps plaintiff. The decedent's approach to this crossing was in level country. His view of the approaching and passing train was completely unobstructed as he approached the crossing and there was no showing of 'special circumstances' justifying application of the exceptional rule which, in McParlan, the Court refused to apply. Actually, as was the in McParlan, defendant's train occupied the crossing well before decedent imminently approached from the west, and so it timely became 'a notice and warning of its own presence.'

The cause of decedent's death was conjectural at best under the rule adopted and followed in Kaminski v. Grand Trunk W. R. Co., 347 Mich. 417, 79 N.W.2d 899; Poledna v. Bendix Aviation Corp., 360 Mich. 129, 103 N.W.2d 789 and Bryant v. Athans, 362 Mich. 17, 106 N.W.2d 389, and the presumption that he exercised due care does not prove that the railroad was actionably negligent. A motorist killed at grade crossing may well be guiltless of fault, say on account of the sudden and genuinely unexpectable failure of his brakes to function, and yet the defendant railroad may likewise be guiltless of the pleaded charge against it. Which is to say that the presumption of due care on the part of a plaintiff's decedent does not, standing alone, satisfy the plaintiff's burden of proving the defendant guilty of causal negligence.

Plaintiff failed to make out a case for jury consideration. The trial judge was therefore right in directing a verdict for defendant. Judgment affirmed. Costs to defendant.

DETHMERS, C. J., and CARR, KELLY and KAVANAGH, JJ., concurred with BLACK, J.

SOURIS, Justice (for affirmance).

I concur in affirming the trial judge's direction of a verdict on defendant's motion at conclusion of plaintiff's proofs.

Plaintiff offered expert opinion testimony that the 60~ angle at which the defendant's railroad track crossed the highway made its train more difficult to see at night than it would be were the track perpendicular to the highway. The expert testified that light is reflected from a reflector surface at the same angle at which at strikes the surface; that a...