Wheeler v. Grand Trunk Western R. Co., 89364

• Decision Date: 18 September 1987
• Docket Number: No. 89364,89364
• Citation: 411 N.W.2d 853,161 Mich.App. 759
• Parties: John S. WHEELER and Kim Wheeler, Plaintiffs-Appellees, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant-Appellant. 161 Mich.App. 759, 411 N.W.2d 853
• Court: Court of Appeal of Michigan — District of US

Page 853

411 N.W.2d 853

John S. WHEELER and Kim Wheeler, Plaintiffs-Appellees, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant-Appellant.

No. 89364.

161 Mich.App. 759, 411 N.W.2d 853

Court of Appeals of Michigan.

Submitted March 10, 1987.

Decided July 21, 1987.

Released for Publication Sept. 18, 1987.

[161 MICHAPP 760] Raymond L. Krell, P.C. by Raymond L. Krell and Derek A. Hurt, Detroit, for plaintiffs-appellees.

Patterson & Patterson, Whitfield, Manikoff, Ternan & White by Gerald G. White and Robert G. Waddell, Bloomfield Hills, for defendant-appellant.

Before CYNAR, P.J., and WEAVER and CHERRY, ^* JJ.

WEAVER, Judge.

Defendant railroad appeals as of right from a jury verdict in favor of plaintiffs. We affirm.

This action arose on January 19, 1982, when the car of plaintiff John Wheeler was struck by a train at the railroad crossing on Orchard Lake Road in Keego Harbor, Michigan, and plaintiff was seriously injured. At trial, plaintiff testified that he had been traveling at approximately twenty-five miles per hour as he approached the crossing, that he did not hear any bells or train whistles nor see any flasher signals, and that he did not see the train until a split second before impact. Additional testimony indicated disagreement as to plaintiff's speed and as to whether the crossing signals were working and the train whistle or bells were sounding.

The jury awarded $477,000 in damages to plaintiff on his negligence claim and $50,000 to plaintiff's wife on her loss of consortium claim, but found plaintiff to be thirty-five percent at fault, thus proportionately reducing the total damage award. Subsequent to denial of its motion for a new trial, defendant railroad appeals as of right, arguing (1) trial court error in allowing testimony of prior crossing signal malfunctions; (2) trial court error in instructing the jury; and (3) denial of a fair and impartial trial due to misconduct of plaintiffs' counsel.

I

The court allowed into evidence a partial reading of the deposition of Theodore Fitch, signal supervisor of defendant railroad, wherein Mr. Fitch was asked if he knew of prior malfunctions at the Orchard Lake Road Crossing. Defendant [161 MICHAPP 762] objected to this reading, arguing that a proper foundation had not been laid.

Defendant also objected to introduction of testimony by Janet Carey, who stated that she had reported signal malfunctions at the Orchard Lake Road Crossing to defendant railroad as many as twenty-four times prior to the accident on January 19, 1982. She also stated that on January 19, 1982, she reported another such malfunction.

Sylvan Lake Police Sergeant James Oliver, the officer present at the scene of the accident, further testified that he had also reported malfunctions of the crossing lights or bells at the Orchard Lake Road crossing at least twenty-four times before the accident on January 19, 1982.

Defendant argues that the trial court should not have allowed witnesses to testify regarding prior signal malfunctions because there was insufficient foundational proof of similarity and there was no testimony as to the dates or nature of the malfunctions.

We disagree with defendant's argument because we believe that there was sufficient foundation to admit testimony of prior malfunctions. The testimony concerned malfunctions involving active flashers when no train was present, and inactive flashers when a train was present. The testimony also concerned malfunctions at the same crossing and on the very day of the accident. Therefore the testimony was relevant to show that defendant had notice of a dangerous condition. Sullivan v. Detroit & Windsor Ferry Co., 255 Mich. 575, 578, 238 N.W. 221 (1931). It was also relevant to prove that a dangerous condition in fact existed, i.e., that the signals were malfunctioning, at the time of the accident. Freed v. Simon, 370 Mich. 473, 475-476, 122 N.W.2d 813 (1963).

[161 MICHAPP 763]

II

Before issuing its initial instructions, the trial court had denied plaintiff's request for Instruction Number 26, but upon reinstruction decided to include it as follows:

"In approaching a crossing protected by warning devices, [a traveler] is entitled to place some reliance on the indication of safety which comes from an inactive warning device.

"It is a question of fact for the jury to decide whether there was an inactive warning device in this case."

Defendant railroad argues that the instruction was improper because it came after closing argument, thereby depriving defendant of the opportunity to properly address the issue, and because it assumes that the signal devices were not working.

We fail to see how the timing of the instruction could have had the least effect upon defendant's ability to fairly argue its case. Proper functioning of the signal device was a significant issue throughout trial, and both sides presented testimony as to the condition of the signal device at the time of the accident. As for the instruction itself, jury instructions must be reviewed in their entirety and should not be extracted piecemeal in an effort to justify reversal. Willoughby v. Lehrbass, 150 Mich.App. 319, 336, 388 N.W.2d 688 (1986). Here, the court's instruction followed established law. Lockett v. Grand Trunk Western R. Co., 272 [161 MICHAPP 764] Mich. 219, 223, 225, 261 N.W. 306 (1935). ¹ Even had the instruction been erroneous or inadequate, reversal is not mandated unless failure to reverse would be inconsistent with substantial justice. Willoughby, supra 150 Mich.App. at 336, 388 N.W.2d 688. We find no want of substantial justice here; the court accompanied its instruction with the specific reminder that plaintiff still had a continuing duty to rely upon his own observations and ascertain for himself whether a train was in fact approaching. ²

III

Finally, defendant railroad argues that misconduct...