Wilson v. Chesapeake & Ohio Ry. Co., Docket No. 55349

• Decision Date: 07 October 1982
• Docket Number: Docket No. 55349
• Citation: 324 N.W.2d 552,118 Mich.App. 123
• Parties: Donald WILSON, Administrator of the Estate of Audry Theresa Wilson, Deceased, Plaintiff-Appellee, v. CHESAPEAKE & OHIO RAILWAY COMPANY, a Virginia Corporation, Defendant-Appellant. 118 Mich.App. 123, 324 N.W.2d 552
• Court: Court of Appeal of Michigan — District of US

Page 552

324 N.W.2d 552

Donald WILSON, Administrator of the Estate of Audry Theresa

Wilson, Deceased, Plaintiff-Appellee, v. CHESAPEAKE & OHIO RAILWAY COMPANY, a Virginia Corporation,

Defendant-Appellant.

Docket No. 55349.

118 Mich.App. 123, 324 N.W.2d 552

Court of Appeals of Michigan.

Submitted March 4, 1982.

Decided July 19, 1982.

Released for Publication Oct. 7, 1982.

[118 MICHAPP 125] Gemuend & Nagi, Detroit, and Martin, Bacon & Martin, P. C., Mount Clemens, for plaintiff-appellee.

Patterson, Patterson, Whitfield, Manikoff, Ternan & White by Gerald G. White and Gretel S. Robinson, Bloomfield Hills, for defendant-appellant.

Before MAHER, P. J., and BEASLEY and MARUTIAK ^*, JJ.

MARUTIAK, Judge.

This case involves the tragic death of plaintiff's decedent at the intersection of a rural road and defendant Chesapeake & Ohio Railway Company's railway in western Oakland County on September 16, 1974. Defendant appeals from a substantial jury verdict and denial of its motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial.

The proofs at trial showed that the decedent, Audry Wilson, was on her way to work at about 8 a. m. on September 16, 1974. As she approached her workplace from the east (westbound) on Wardlow Road, she came to a marked railroad crossing with a standard crossbuck and stop sign.

Other testimony showed that the weather was clear, the temperature approximately 50 degrees and that there was dew on the ground, and probably on the automobile's windows. On the east side of the railroad tracks, north of Wardlow Road, a [118 MICHAPP 126] private tree farm raised some "rather tall maples" abutting the railroad property beside Wardlow Road, and large pines which "[did] not totally obscure the train or tracks [from decedent's position at the stop sign] but did create a distraction and did obscure partially the vision of oncoming motorists which would be proceeding west on Wardlow."

The defendant's train, southbound on the tracks, was proceeding at approximately 30-32 m.p.h. Testimony showed that the train was approximately one mile long and from 14 to 16 feet high. In the locomotive cab were the train's engineer, William Lee Mills, a brakeman, Gerald Heddon, and a fireman, Kenneth Little. Mills, the engineer, sat on the right side of the engine, facing forward. Beside him, sitting in tandem, the brakeman and fireman also faced forward looking through a window on the left side of the engine. The right and left sides of the cab are partitioned by the engineer's console which partially blocked the men's vision directly to their east or west. Additionally, the engineer's vision is restricted to an arc of 15 degrees from the front of the engine to the nose of the engine; the reverse is true of the brakeman and the fireman.

Mills testified that he had passed this crossing many times. After negotiating a curve approximately 3/4 to 1 mile from the crossing, he had a clear view of the tracks. At a whistle post, between 1,200 and 1,500 feet north of the crossing, Mills began to blow the train horn as he was required to do. The headlights and engine bell were also activated. Mills testified that, at the whistle post, he was looking forward down the railroad tracks. He saw nothing on the tracks at that time. Mills also said that he saw nothing on the tracks at 1,000 [118 MICHAPP 127] feet from the crossing or at 750 feet from the crossing. Mills continued to look forward until some point less than approximately 700 feet from the Wardlow crossing. At that point, in the later stages of his approach to the crossing, Mills turned for "just a second or two" to speak to fireman Little. Mills saw the other men facing forward until he spoke to Little. At that time, "very close to the crossing", he saw the brakeman's expression change to a look of alarm. Mills immediately looked forward.

Ahead, approximately 300-500 feet from the train, Mills saw a stationary car in the crossing. Mills said he never saw the car move onto the tracks. He immediately put the train into emergency stop, shut off the throttle, and began to blow short bursts on the train air horn to get the driver's attention. At this point, Mills noted mile post 60 positioned approximately 1/2 way between the engine and the crossing (300-500 feet).

Mills said that in the terrifying seconds before the crash he could see movement in the car "as though an attempt or shift to do something was being done inside the car. * * * rather violent movement trying to shift the vehicle to start the car or something".

The train struck the automobile and continued down the track for 1,126 feet. Mills stated that the brakes operated normally under full emergency application and further testified that in order to have made an emergency stop before striking the car, he would have had to put the emergency brake on at the whistle post.

The testimony of Heddon and Little substantiates that of engineer Mills in that the car was first sighted on the tracks when the train was between 300-500 feet from the crossing. Both men had [118 MICHAPP 128] turned to look at Mills when he spoke to Little, Heddon merely glancing over. Heddon, was the first to see the car, yelled and the others immediately turned to look. Both Little and Heddon testified that the windows of the car were covered with "heavy dew" but that they could see the person inside the car moving about.

A number of witnesses testified concerning the safety of the Wardlow Road crossing. Several witnesses indicated that brush and growth close to the track made the crossing quite dangerous.

At the close of the proofs, the trial court instructed the jury using SJI2d 14.01, the amended "Last Clear Chance" instruction, over the objection of defense counsel.

On October 14, 1980, the jury returned a verdict in the amount of $1,456,721. The jury found that Mrs. Wilson was 40% negligent and that the defendant was 60% negligent. A judgment was, therefore, entered in the amount of $874,032.60. This appeal followed the trial court's denial of defense motions for a new trial or judgment notwithstanding the verdict.

We are asked for the first time to rule on the Doctrine of Last Clear Chance as that doctrine applies to comparative negligence in Michigan. ¹ We [118 MICHAPP 129] are also asked to rule on the trial court's instructions to the jury.

Comparative negligence came to Michigan, not unexpectedly, via court decision in the absence of legislative action. Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979). Placek does not address a number of tort concepts, although Justice Coleman perceptively saw a number of jural demons lurking in the wings in her part concurring and part dissenting opinion. Placek, 700, fn. 11, 275 N.W.2d 511.

What is the role of Last Clear Chance in a "pure" comparative negligence system? Should we abandon it as one commentator suggests? ² A number of states have said so. ³ Should we carry on with the doctrine as a form of jury instruction, if the facts support giving such an instruction?

[118 MICHAPP 130] We choose the latter course and agree that comparative negligence has a place for the Last Clear Chance Doctrine. The SJI was given here. We agree that the SJI adequately states the law and that it should be given in the proper circumstances. Zeni v. Anderson, 397 Mich. 117, 153-155, 243 N.W.2d 270 (1976); Massey v. Scripter, 401 Mich. 385, 392-393, 258 N.W.2d 44 (1977).

Should the instruction had been given in this case? No, and because it was and the defendant objected, we find reversible error and remand the case for a new trial.

The position of the Restatement of Torts, 2d Secs. 479 and 480, was adopted in Zeni, supra, and the restatement position forms the basis for SJI2d 14.01. In pertinent part, that standard jury instruction reads:

"Even if you decide [plaintiff/decedent] negligently subjected [himself/herself] to the risk of harm from the defendant's negligence, the plaintiff may still recover for harm caused by the defendant's negligence if, immediately preceding the harm--

"a. the [plaintiff/decedent] was unable to avoid it by exercise of reasonable vigilance and care, and

"b. the defendant was negligent in failing to use with reasonable care [his/her] existing opportunity to avoid the [plaintiff's/decedent's] harm, when [he/she]

"i. knew of the [plaintiff's/decedent's] situation, and realized or had reason to realize the peril involved in it, or

"ii. could have discovered the situation if [he/she] had exercised the vigilance which it was then [his/her] duty to the [plaintiff/decedent] to exercise.

"Even if you decide [plaintiff/decedent], by the exercise of reasonable vigilance, could have discovered the danger created by the defendant's negligence in time to avoid the harm to [him/her], the plaintiff can still recover, if--

[118 MICHAPP 131] "a. the defendant knew of the [plaintiff's/decedent's] situation, and

"b. the defendant realized that the [plaintiff/decedent] was inattentive and therefore unlikely to discover [his/her] peril in time to avoid the harm, and

"c. the defendant was negligent after that in failing to use with reasonable care [his/her] existing opportunity to avoid the harm." (Emphasis added.)

Our review of the facts leads us to conclude that this defendant had no existing opportunity to avoid harm after discovering the decedent's peril. The evidence produced at trial showed that:

(1) The three crew members had a duty to look ahead when approaching a crossing;

(2) From a point 3/4 to 1 mile from the crossing, the engineer had a clear view of the crossing;

(3) The engineer began to blow the train whistle at the whistle post, 1,250 feet north of the crossing; at this point, the engineer and brakeman were both looking ahead at the crossing and saw nothing on the tracks;

(4) The engineer "believed" he saw nothing on the tracks at 1,000 feet from the crossing;

(5) The engineer saw nothing on the tracks at 750...