Baldinger v. Ann Arbor Railroad

127 N.W.2d 837, 372 Mich. 685, 1964 Mich. LEXIS 320
CourtMichigan Supreme Court
DecidedMay 4, 1964
DocketCalendar 41, Docket 50,136
StatusPublished
Cited by18 cases

This text of 127 N.W.2d 837 (Baldinger v. Ann Arbor Railroad) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baldinger v. Ann Arbor Railroad, 127 N.W.2d 837, 372 Mich. 685, 1964 Mich. LEXIS 320 (Mich. 1964).

Opinion

Black, J.

The plaintiff husband sued under the statute for wrongful death of his wife, Mildred Baldinger. Mrs. Baldinger’s death resulted from a collision at grade of defendant’s train with an automobile occupied by her. Yerdict and judgment for defendant. On appeal the decisive question is brief-stated by plaintiff’s counsel:

“Did the trial court err in eliminating from jury consideration plaintiff’s theory that the railroad crossing at which the automobile-train collision occurred was an ‘extra hazardous crossing’, requiring additional safeguards and precautions on the part of the defendant railroad?”

To introduce the facts and our decision to affirm, we consider representative examples of the rule to which counsel allude. The.rule is, in general, that if a .crossing jf..grade is .shown, to be “unusually dangerous,” ordinary care requires that the railroad *687 meet tlie peril with unusual precautions, whether such precautions are or are not required by statutory law or safety regulation, particularly where; the dangerous condition results from obstructions to' view which actually prevent the highway traveler: from seeing an approaching train until he is dangerously close to the track. Such unusual precautions are sometimes known as “local warnings.”' Nor extended discussion and citation, see 44 Am Jur Railroads, §§ 507, 514, pp 747, 748, 757, 758.

In our reports the first reference to such rule appears in the early and exhaustively considered grade-crossing case of Lake Shore & M. S. R. Co. v. Miller, 25 Mich 274. The reference is part of an extended footnote. The applicable portion reads (2d ed, annotated, p 274 [page number at bottom 290]):

“It is not, however, enough in all cases, that the statutory signals have been given to absolve the railroad company from the charge of negligence. Other precautions may be required under some circumstances, and there may be negligence that will charge the company, besides the omission to sound the whistle or ring the bell: [citing cases, all dehors Michigan].”

The next occasion for consideration of the rule seems to have arrived with submission to the Court of Staal v. Grand Rapids & Ind. R. Co., 57 Mich 239. Through Justice Campbell the Court said (p 243):

“The principal grievance, however, was, as claimed, the absence of any local warning. The duty of having gates or flagmen at a street crossing is not imposed absolutely at all city street crossings. But it cannot be held that circumstances may not impose a duty to do this or something which will be of service to passers-by. Under the charter of Grand Rapids it appears that the common council passed resolutions requiring the marshal to notify *688 the proper officers of railroads to station flagmen at street crossings, and that this notice reached the defendant. The court below did not recognize this as Imposing any legal duty, and we need not now consider how far it did so. But the jury were told that while there was no absolute duty laid on them by law, it was for them to decide whether ordinary care •and prudence required some such precaution under the circumstances. In this we think there was no ‘error.”

. Justice Campbell then turned to the ever-important facts and, from those facts, concluded that “the jury had enough before them to warrant them in considering these surroundings so dangerous as to call for some efficient local warning to passers-by.”

Here are further exemplary passages with included citations:

“We think, too, that the question should have been submitted to the jury whether or not the defendant was guilty of negligence in not providing some method for giving notice of the approach of the train at this crossing, in a populous portion of the city, when it was temporarily, for purposes of its own, so obstructed by the company that the view of persons having the right to use the highway was so cut off that it was difficult to determine whether a train was approaching or not. Guggenheim v. Lake Shore & M. S. R. Co., 66 Mich 150; Freeman v. Duluth, S. S. & A. R. Co., 74 Mich 86 (3 LRA 594); Grand Trunk R. Co. v. Ives, 144 US 408 (12 S Ct 679, 36 L ed 485).” (Willet v. Michigan Central R. Co., 114 Mich 411, 416.)
“It is not ordinarily negligence to neglect to have a flagman at a crossing in the absence of an order from the commissioner of railroads, and yet circumstances of the particular case may be such that the absence of a flagman may be evidence of negligence. See Freeman v. Duluth S. S. & A. R. Co., *689 74 Mich 86 (3 LRA 594); Willet v. Michigan Central R. Co., 114 Mich 411; Grenell v. Michigan Central R. Co., 124 Mich 141; Grand Trunk R. Co. v. Ives, 144 US 408 (12 S Ct 679, 36 L ed 485); 2 Thompson, on Negligence, § 1535. And so of the absence of a flagman or lookout at the rear of a car being-backed across a way. Green v. Chicago & W. M. R. Co., 110 Mich 648 (12 Am Neg Cas 128); Schindler v. Milwaukee, L. S. & W. R. Co., 87 Mich 400; 2 Thompson on Negligence, §§ 1571 and 1594.” (Barnum v. Grand Trunk W. R. Co., 148 Mich 370, 373.)

Since the Ives Case, cited in Willet and Barnum above, arose in Michigan and was governed by Michigan’s pertinent view of grade-crossing law, it may be well to consider what on that occasion was said of Grand Trunk’s contention that its duty to street and highway travelers was prescribed exclusively by statutory regulations (p 422 of report). Having-stated the contention, along with Michigan citations proffered by the railroad, the supreme court asked and answered a rhetorical question: “But do the Michigan cases cited sustain the defendant’s contention? We think not; but rather that they support the rule laid down by the court below in the charge excepted to.” Here is Justice Lamar’s conclusion, for the court (p 427 of report);

“The underlying- principle in all cases of this kind which requires a railroad company not only to comply with all statutory requirements in the matter of signals, flagmen and other warnings of danger at public crossings, but many times to do much more than is required by positive enactment, is, that neither the legislature nor railroad commissioners can arbitrarily determine in advance what shall constitute ordinary care or reasonable prudence in a railroad company, at a crossing, in every particular ease which may afterwards arise/’

*690 See, also, McParlan v. Grand Trunk W. R. Co., 273 Mich. 527, 533 and Emery v. C. & O. R. Co., 372 Mich 663.

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Bluebook (online)
127 N.W.2d 837, 372 Mich. 685, 1964 Mich. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldinger-v-ann-arbor-railroad-mich-1964.