Wiles v. N.Y. Cent. R. Co.

• Decision Date: 04 June 1945
• Docket Number: No. 283.,283.
• Citation: 19 N.W.2d 90,311 Mich. 540
• Parties: WILES v. NEW YORK CENT. R. CO. et al. (two cases).
• Court: Michigan Supreme Court

311 Mich. 540

19 N.W.2d 90

WILES

v.NEW YORK CENT. R. CO. et al. (two cases).

No. 283.

Supreme Court of Michigan.

June 4, 1945.

Appeal from Circuit Court, Wayne County; W. McKay Skillman, Special judge.

Actions by Fannie Wiles and by Claud Wiles against New York Central Railroad Company and Michigan Central Railroad Company, lessee, and Frank Hunt, for personal injuries sustained by plaintiffs in a collision between plaintiff's automobile and automobile driven by the defendant Frank Hunt, which resulted from attempt of the defendant Frank Hunt to avoid collision with a train. Verdict and judgment for plaintiffs as against the defendant railroads, and they appeal.

Reversed and new trial granted.

Before the Entire Bench.

Paul W. Tara and Julien Winterhalter, both of Detroit (Hull, Brown & Fischer, of Detroit, of counsel), for plaintiffs and appellees.

William A. Alfs, of Detroit (John J. Danhof and Russell T. Walker, both of Detroit,of counsel), for defendants and appellants.

STARR, Chief Justice.

About 6:15 p. m. on August 22, 1938, plaintiff Claud Wiles accompanied by his wife, plaintiff Fannie Wiles, was driving west on Greenfield road in the village of Melvindale at a speed of 35 to 40 miles an hour. At the same time defendant Frank Hunt was driving east on Greenfield road, which was a heavily-traveled, cementpaved highway 20 feet in width. It was daylight, visibility was good, and the pavement wad dry. These cars, going in opposite directions were approaching a spur track of defendant railroads, which intersected said highway. The main line of the railroads was located several hundred feet south of the intersection, and the spur track led from the main line across the highway to the plant of the Darling Company, which was located just north of the highway.

Plaintiff Claud Wiles was familiar with the intersection and had driven over it many times. When he was about 50 feet from the spur track, he first saw a string of four or five box cars approaching the intersection from the south at a speed of 12 to 15 miles an hour. These box cars had been put in motion by a switch engine which had been disconnected, and the cars were proceeding under their own momentum toward the Darling plant. Plaintiff Claud Wiles continued to drive west at about the same speed and safely crossed the track ahead of the box cars. Defendant Hunt, driving east, saw the box cars approaching the intersection. To avoid a collision with them, he swerved to the north across the highway and collided with plaintiff's car at a point on the north side of the highway about 26 feet west of the spur track. Plaintiff Claud Wiles was severely injured. Plaintiff Fannie Wiles sustained severe and permanent injuries.

In September, 1939, Fannie Wiles began suit against Frank Hunt and the railroad companies, and in March, 1941, Claud Wiles began suit against the same defendants. In their declarations plaintiffs alleged that defendant railroads were negligent in shunting uncontrolled box cars across the highway; in operating said cars without air brakes; in failing to give warning of the approach of the cars; and in operating them in a careless and reckless manner. They charged defendant Hunt with negligence in the operation of his automobile. Defendant railroads answered, denying that they were negligent and that plaintiffs were free from contributory negligence. Defendant Hunt answered, denying that he was negligent and alleging in substance that the accident was caused by the negligence of the railroads.

The two cases were consolidated, and upon jury trial defendant Hunt did not appear in person and was not represented by counsel. At the conclusion of plaintiffs' proofs, the railroads moved for directed verdicts on the ground that there was no proof of negligence on their part; that plaintiff Claud Wiles was guilty of contributory negligence as a matter of law, and that his contributory negligence was imputed to plaintiff Fannie Wiles. The trial court reserved decision on such motions, and the railroads rested without offering any proofs. The jury returned verdicts of $20,000 for Fannie Wiles and $5,000 for Claud Wiles against the railroads, and a verdict of no cause of action against Hunt. Motion of the railroads for judgments notwithstanding the verdicts against them was denied, and judgments were entered on the jury verdicts. The motion of the railroads for a new trial was denied, and they appeal, the two cases being consolidated. There was no appeal from the judgment for Hunt.

The railroads first contend that there was no evidence establishing negligence on their part. We cannot agree with this contention. They set a string of box cars in motion on a spur track which crossed a heavily-traveled highway. The air brakes on these cars had been disconnected when they were uncoupled from the locomotive which put them in motion, and the only means of controlling them as they approached the highway was by a hand brake on each car. There was a railroad disc sign located on the north side of the highway 498 feet east of the intersection and a similar sign on the south side of the highway 380 feet west of the intersection. However, there was no warningsignal equipment and no watchman of flagman at the intersection. A brakeman testified that he was riding on top of the first box car approaching the highway, but it appears that he gave no warning and made no attempt to use the hand brake. Witnesses who viewed the box cars crossing the intersection testified that they did not see the brakeman on the car. Plaintiff Claud Wiles and a witness who was driving behind him as he approached the track testified that they did not hear any bell or whistle, and it should be noted there was no testimony that a bell or whistle was sounded. In the absence of proof to the contrary, we believe it may reasonably be inferred that the box cars in question were not equipped with bells or whistles.

Defendants attack the testimony of plaintiff Claud Wiles and his witness that they did not hear a whistle or bell, on the ground that this testimony was purely negative in character and not sufficient to raise a question of negligence for jury consideration. The proper rule on this point was stated in Hart v. Railroad Co., 278 Mich. 343, 346, 270 N.W. 704, 706, as follows:

‘Where the testimony of witnesses on the part of the plaintiff does not show that they were listening or otherwise giving heed or attention to an on-coming train, testimony that they did not hear the signals does not take the case to the jury, where there is positive testimony by other winesses * * * that signals were given.’ (66 A.L.R. 1538.)

See, also, Lambert v. Railway Co., 209 Mich. 107, 176 N.W. 453; 2 Wigmore on Evidence, 3d Ed., p. 778, § 664.

In the present case there was no positive testimony that a whistle, bell or other warning signal was sounded and, therefore, the statements of plaintiff Claud Wiles and his witness that they did not hear any signal were entitled to consideration by the jury. In summary, the facts and circumstances shown by the record presented a question of fact for jury determination as to whether or not defendant railroads were negligent in the operation of the box cars on the spur track.

The railroads next contend that there was no evidence establishing that their alleged negligence was the proximate cause of plaintiffs' injuries. They base this contention on the claim that the intervening negligence of defendant Hunt was the proximate cause of said injuries. In this contention defendant railroads overlook the established rule that the negligence of two or more defendants may be cooperating and concurrent proximate causes of an accident and resulting injuries. That is to say, if the railroads were negligent and their negligence continued until the time of the accident, the intervening negligence of defendant Hunt would not relieve them from liability. In the case of Bordner v. McKernan, 294 Mich. 411, 293 N.W. 889, 890, plaintiff Bordner was riding in a taxicab owned by defendant McKernan and driven by defendant Bentley. The taxicab was involved in an accident, and Bentley stopped it in the middle of the street and went back to inspect the damage to the other car. Plaintiff remained in the cab, and an automobile driven by defendant Quinn crashed into it, injuring plaintiff. In affirming judgment for the plaintiff against all defendants, we said:

‘With regard to the contention that the negligence of Quinn was the sole cause of the accident, it is to be remembered that there may be more than one proximate cause of the same injury. Assuming that Quinn was negligent in running into the taxicab and that the injuries would not have resulted without such negligence, it is clear that Bentley's negligence may also have been a proximate cause and that the two negligent acts may have been cooperating and concurrent.'

In Reed v. Ogden & Moffett, 252 Mich. 362, 233 N.W. 345, a truck and trailer owned by defendant Ogden & Moffett corporation had been stopped in the nighttime on a highway because the rear lights on the trailer had gone out. Defendant James, driving an automobile, approached the truck, and when he applied his brakes to avoid striking it, his car skidded into the path of the car in which plaintiff was riding and a collision followed. In affirming a judgment for plaintiff, we said (page 366 of 252 Mich.,page 346 of 233 N.W.):

‘It is urged that defendant's negligence was not the proximate cause of plaintiff's injuries, as the car in which he rode collided with James' car, not with defendant's truck. That James was negligent we need not discuss. Assuming that he was, and that the accident would not have happened but for his negligence, it is clear that defendant's negligence was also a proximate cause; the two were co-operating and concurrent.'

In 4 Blashfield, Cyc. of Automobile Law, Perm. Ed., pp. 360-362, §§ 2551, 2552, it is stated:

‘There may be more than one...