Bauman v. Grand Trunk Western Railroad

138 N.W.2d 285, 376 Mich. 675, 1965 Mich. LEXIS 238

• Court: Michigan Supreme Court
• Decided: December 7, 1965
• Docket: Calendar 56, Docket 50,367
• Status: Published

Opinions

Smith, J.

This time in this case, the chief question for review concerns jury instructions. Other facets of the case are contained in 2 prior reports.¹ Essentially, the facts are that a collision occurred in the early afternoon of April 20,1956, at a grade crossing-in the village of Gregory, between one of defendant’s trains and a truck driven by plaintiff. At the point where the accident happened, defendant’s single track crosses highway M 36 almost at right angles. The crossing was marked by a crossbuck sign which was reflectorized, but without warning lights or other crossing protection. Plaintiff’s counsel conceded in his opening statement that the crossing is in the business section of the village and, for a distance of more than 300 feet north of the tracks, the frontage on M 36 (Main street in Gregory) is occupied by dwellings and buildings.

One of plaintiff’s pleaded claims was that defendant was negligent in failing to provide more adequate crossing protection such as lights, gates, and a warning bell, and as a result thereof plaintiff was not warned of the approaching train in sufficient time to avoid collision with it. Among the proofs were the following: obstructions to plaintiff’s view of any' oncoming trains occasioned by buildings and other objects abutting the highway and the railroad right-of-way; trains making the crossing at various times not according to any particular schedule; relative silence of diesel engines as compared with steam locomotives formerly in use, and other proofs. Defendant offered counter proofs, so it is clear that the adequacy of crossing protection was in issue. (See direct quotation from plaintiff’s brief.)²

As to the same issue, plaintiff requested an instruction that the presence of a crossbuck warning sign would not relieve the railroad of its duty to furnish other protection if special conditions required, citing and relying upon McParlan v. Grand Trunk W. R. Co., 273 Mich 527.

The following charge was given:

“Now, in regard to this question of special conditions, if you find, and by a preponderance of the evidence, that the area of highway M 36 north from the crossing in question here was a business or residence district as I have defined it for you, then the speed limit there would be 25 miles per hour and there tvould not have been shown special conditions in this case under which the railroad would be required to furnish flashers, bells, gates, or watchmen at this crossing, and no negligence could be charged to the railroad for failing to furnish any extra safeguard other than the regular railroad signs; and in this case it is not disputed that the regular railroad sign was furnished.

“Now, on the other hand, jurors, if you find by a preponderance of the evidence that the area of highway M 36 north from the crossing in question here was not a business or residential district; then this question is presented for your consideration; and in that connection I instruct you as follows:

“As to the lack of adequate signs, signals, gates or flagman at the crossing, I instruct you that the presence of the crossarm sign does not relieve the railroad company from the necessity of furnishing further safeguards if there are special circumstances which would reasonably require them.” (Emphasis supplied.)

In the light of the concession made by plaintiff’s counsel in his opening statement that the crossing was located in the business section of Gregory and in the absence of any evidentiary conflict with reference thereto during the trial, there was no occasion to submit to the jury, as the trial judge did, the question whether the crossing was or was not within a business, residential or other area. Furthermore, by his quoted instruction the trial judge effectively took from the jury its exclusive right to determine whether, in light of all the facts and circumstances surrounding this business district grade crossing, reasonable prudence required the railroad to maintain devices warning motorists of its approaching trains in addition to the wooden crossbuck sign required by law and present at the crossing. This error, fatally affecting one of the key issues pleaded by plaintiff and supported by his proofs, requires reversal and remand for new trial.

Since the trial of this case of Bauman and .about one year after denial of plaintiff’s motion for new trial, this Court reviewed comprehensively the common-law duty of railroads to maintain grade crossing protective devices in addition to those required by statute, in Emery v. Chesapeake & O. R. Co. (1964), 372 Mich 663. In the Emery Case, plaintiff, at night, drove his automobile into the side of a train, striking the 31st and 32d cars of a 56-car train. The only warning device at this single-track grade crossing was a standard wooden crossbuck sign. The crossing is in the city of Flint. This Court held that (p 681) “the trial judge properly submitted for jury determination the question whether the physical circumstances existing at the grade crossing involved in this case required defendant railroad in the exercise of ordinary care and prudence commensurate with such circumstances to provide warning devices in addition to the ordinary wooden crossbuck sign.”⁴

In Emery, we admonished bench and bar that the common-law duty of railroads to use “ordinary care and prudence commensurate with all the circumstances” should be applied without encumbrance by “the analysis-crippling semantics of ‘special conditions’ ”, or “unusual conditions” or “special circumstances.” By analysis of the following cases, it was demonstrated that beginning with early Michigan decisions, the rule has been most often applied in its broad perspective, without the “analysis-crippling semantics.” Staal v. Grand Rapids & I. R. Co., 57 Mich 239; 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); and Barnum v. Grand Trunk W. R. Co., 148 Mich 370. It was also held in the Emery Case, that although the rule had been accurately stated in McParlmi v. Grand Trunk W. R. Co., supra, in that case, however, the rule was improperly applied.

The Court further held in Emery that the “trial judge erred in his conclusion, in granting defendant’s motion for judgment non obstante veredicto, that absent proof of ‘unusual conditions’ at this crossing, as a matter of law defendant was under no obligation to maintain additional warning devices.” The Court said at page 680:

“McParlan, Staal, Guggenheim, Freeman, and Barnum should no longer be misconstrued as the sources of a truly exceptional and equally erroneous rule (nor should those cases be misapplied to reach a result) by which railroads are relieved of their common-law obligation to maintain such grade crossing safeguards as ordinary prudence requires upon 'judicial determination of the absence of ‘special circumstances.’ The decisions discussed above were true to the common law in recognizing that responsibility for determination of that which ordinary prudence requires is placed squarely and exclusively in our system of justice upon the jury and it is not a responsibility subject to a judge’s determination of the presence of a factual condition precedent. Only in McParlan did the Court fail to apply that rule, while at the same time acknowledging its existence.”

Not to be overlooked in our Emery opinion is its second part, p 681 et seq., in which, by reference to Walsh v. Grand Trunk W. R. Co. (1961), 363 Mich 522, we considered the adequacy of Emery’s proof linking defendant railroad’s breach of its common-law duty and Emery’s injuries by the chain of proximate causation. In that case, we found legally sufficient evidentiary support for the inference of causation the jury necessarily drew in rendering its verdict for Emery. In Walsh, on the other hand, as in Baldinger v. Ann Arbor R. Co. (1964), 372 Mich 685, decided with Emery, we found the plaintiffs’ proofs of causation legally insufficient. As in every other assertion of actionable common-law negligence, before a highway traveler injured by collision with a train at a grade crossing is entitled to have submitted to a jury his claim that the physical circumstances existing at the grade crossing required the railroad in the exercise of ordinary care and prudence commensurate with such circumstances to provide warning devices in addition to those required by statute and actually maintained by the railroad, he must offer proof legally sufficient to support a jury finding that failure to provide such additional warning devices proximately caused the collision. It is not enough to prove even the most blatant disregard by a railroad of its common-law duty if the evidence shows such breach of duty had nothing whatever to do with plaintiff’s damage or if the evidence offers no more than a conjectural choice as to proximate cause, as in Walsh, supra.

We believe the proofs offered by plaintiff, described below, were legally sufficient to have supported a jury finding that defendant’s alleged breach of duty proximately caused the collision. We conclude that the jury instruction quoted above was reversibly erroneous because it pre-empted the jury’s exclusive right to determine what additional warning devices, if any, the physical circumstances of the grade crossing required of defendant to satisfy its common-law duty of due care.

We know of no case where the common-law duty of railroads as to crossing protection is, as a matter of law, solely dependent upon whether the crossing is in a business or residence district or in the open country. Certainly, facts and circumstances will vary between crossings in a business or residence district as they will vary in the open country. Thus, unless no reasonable minds can disagree, it remains a jury question, in view of all the facts and circumstances, whether crossing protection, in addition to that provided by statute, is reasonably required. The quest remains constant. Thus while we found in Baldinger, supra, that plaintiff’s view was not so obstructed that she could not see defendant’s train approaching an open country crossing, we drew no distinction between an unobstructed crossing in open country and an unobstructed crossing in a city, nor was a distinction otherwise drawn between country and city crossings in Emery, a city crossing case. Neither in Barnum, supra, a city crossing ease, nor in any other of the principal cases cited, is there any suggestion that the variable common-law duty, which depends upon all relevant factual circumstances, is altered one whit merely by tbe fact that tbe crossing is in a residence or business district or in open country. There being no support for it in either reason or authority, we are constrained to hold that the charge as given constituted reversible error.

Before discussing the proximate cause issue, one other point should be made about the instruction. The trial judge’s opinion denying plaintiff’s motion for new trial does not state why he pre-empted this determination from the jury, if it found from the evidence, as it would have had to do, that the crossing was in a business or residential section while permitting the jury to determine whether or not the crossing was in such section.⁵

As we have noted, the record discloses proofs which clearly entitled plaintiff to submission to the jury of the issue of the railroad’s alleged breach of its common-law duty to provide adequate warning devices at its grade crossing and that such breach of duty proximately caused the collision. We do not agree with Justice Black’s conclusion that plaintiff’s causation proofs support only his subsequent negligence theory of recovery and that they do not support a theory based upon the “dangerous crossing” rule. As we view that evidence, it supports both theories on the issue of causation.

Plaintiff, suffering retrograde amnesia, was unable to testify regarding events immediately preceding the collision, but other witnesses testified fully, if contradictorily. Viewing such testimony and other evidence in the light most favorable to plaintiff, we must conclude that plaintiff’s southeastward view of defendant’s westbound 10-car train, traveling at 30 miles per hour as he approached the grade crossing, was blocked by a two-story building located, at its nearest point to the intersecting highway and track, 35 feet from the center line of the 20-foot highway and 62 feet from the northernmost track. The intersection of the highway and track, in its northeast quadrant, was at an angle of 93°25'. Thus, when plaintiff was 100 feet from the track, his vision eastward along the track was blocked beyond 96 feet from the intersection by the building described. At 90 feet from the track, he had a view of only 142 feet eastward from the intersection. At 75 feet, his view extended 219 feet. Other obstructions, along the roadway and, as well, along the track, substantially, if not completely, blocked plaintiff’s view of westbound rail traffic before he arrived at a point 100 feet from the grade crossing. There were, likewise, obstructions to plaintiff’s westward view as he approached the grade crossing.

Absent any direct evidence of plaintiff’s speed,⁶ we must assume for our purposes on this appeal, that he was not exceeding the statutory 25-mile speed limit. The evidence indicated that at that speed, plaintiff was traveling 37 feet per second. Thus, while less than three seconds away from the crossing 100 feet distant, plaintiff’s eastward view of defendant’s track was obstructed as was the corresponding northward view of the train crew. Within this all-too-brief span of time plaintiff, and indeed any other traveler approaching the crossing within the speed limit, had to look not only eastward, but westward as well, which the record indicates plaintiff did after he had passed a point 75 feet from the crossing. Even were the jury to assume that an average motorist traveling in a vehicle at 25 miles per hour on dry asphalt could, theoretically, stop the vehicle in 67 feet, as the jury was advised by a documentary exhibit introduced in evidence, it would have been entitled to find, entirely consistent with plaintiff’s alternative theory of subsequent negligence, that plaintiff’s first perception of defendant’s westbound train occurred so near the crossing, that he applied his brakes in panic, skidded onto the railroad track and stalled his engine in a frantic effort to back away from the onrushing train. The jury would have been entitled to find, if properly instructed, that the physical circumstances existing at the grade crossing “required defendant railroad in the exercise of ordinary care and prudence commensurate with such circumstances to provide warning devices in addition to the ordinary wooden crossbuck sign” (Emery, supra, p 681) and that the absence of such additional warning devices caused plaintiff to react as he did, upon sudden perception of the unexpected train, in his futile effort to avoid collision. Consequently, we hold it was reversible error for the trial judge to refuse to submit to the jury the issue of defendant’s common-law duty to furnish warning devices in addition to those required by statute.

We agree with Justice Black, and for the reasons he has stated, that the trial judge’s jury submission of plaintiff’s subsequent negligence theory was likewise erroneous.

Reversed and remanded for new trial. Costs to plaintiff.

T. M. Kavanagh, C. J., and Dethmers, Souris, and Adams, JJ., concurred with Smith, J.

1 Twice before this case has come before the Court for review. In the first instance, we ruled on a venue question. Bauman v. Grand Trunk W. R. Co., 353 Mich 279. In the second instance, this Court found that the trial court abused its discretion in refusing a continuance motion where the principal attorney became seriously ill during trial. Bauman v. Grand Trunk W. R. Co., 363 Mich 604.

2 “2. Where the declaration alleged that defendant was negligent in failing to provide more adequate safeguards at the crossing, was it proper to instruct the jury that no negligence could be charged to defendant for such failure if the crossing was in a business or residence district?

“Plaintiff’s declaration alleged:

“ 'That the negligence and unlawful conduct of the defendant, consisted of the following: * * *

“‘(e) Failing to provide a flagman or watchman to warn and apprise plaintiff that he was approaching a railroad crossing at the time the train of the defendant was approaching said highway and railroad crossing;

“‘(d) In failing to provide or operate a protective gate or gates, across said highway at said railroad crossing;

“‘(e) In failing to provide and furnish an automatic eleetric bell or other warning or signal device at said railroad crossing to warn and apprise the plaintiff of the approach of any train of cars of said defendant to said crossing on said railroad’ (19a-20a).

“There was evidence before the jury of all of the following facts:

“(a) Obstruction to plaintiff’s view in approaching the crossing (Exhibits 1, 2, 3, 4 and 5, pp 2a-6a, 52a-54a).

“(b) The train running on no scheduled time (304a).

“(c) An average of 600 motor vehicles on a State trunkline highway passing over this crossing daily (104a), contrasted with conditions at the crossing some 40 years earlier showing horsedrawn vehicles and only an occasional automobile over a dirt road, with the same erossbuek sign then in plaee, the only change being reflectorized letters thereon (Exhibit 11, pp 240a-244a).

“(d) The old noisy steam locomotive (Exhibit 11) replaced by the comparatively silent diesel engine.

“(e) School children, including those of kindergarten age, passing over the crossing several times daily (pp 111a, 112a).

“(f) Operation of the engine at the time of the accident by an inexperienced acting engineer (pp 290a-303a).

“(g) Failure of the acting engineer to sound the bell or whistle of the engine as it approached the crossing (pp 52a-57a, 95a-100a).

“(h) Failure to have the station agent, standing nearby, give plaintiff any warning signal of the approaching train (482a).

“Whether or not these combined conditions and circumstances would require defendant, in the exercise of reasonable care, to provide some signal beyond the old crossbuck sign, to warn motorists of the approaehing train, was a question for the jury. But the trial court told the jury that they could not consider this issue at all if the crossing was in a business or residence district.”

4 The trial judge was reversed for granting defendant’s motion for judgment non obstante veredicto.

5 It was suggested during oral argument before this Court, and we are inclined to agree, that the trial judge probably reasoned that if the collision occurred in a business or residential section where State law (CLS 1956, § 257.627 [Stat Ann 1952 Rev § 9.2327]) imposes a 25-mile speed Emit, the plaintiff would have had sufficient time to stop had he been traveling within the speed limit even after he had passed beyond the obstructions to his view along the tracks and, thus, that as a matter of law he was not entitled to a verdict based upon this claim of common-law negligence. If this were the judge’s reasoning, the factual record does not permit such a conclusion as a matter of law. See our discussion of that factual record, infra.

6 There was evidence that skid marks leading up to the track, 60 feet in length, indicated plaintiff’s speed was 33 miles per hour. However, the evidence was such that the jury could have concluded that the skid marks were not made by plaintiff’s truck. Furthermore, the estimate of speed from the length of the skid marks did not take into account which tires, front or rear, commenced the skid marks, nor in determining perception reaction time did the witness who made the estimates of speed consider that plaintiff’s position in the truek cab was some undisclosed distance from the front wheels of the truck. Thus, absent evidence of the truck’s wheelbase and the distance from plaintiff’s position in the cab to the front of the truek, both crucial to an accurate estimate of plaintiff’s speed, the jury would have been entitled for those additional reasons, although we do not suggest by saying this that a jury cannot disbelieve opinion evidence even in the absence of apparent-reason, to disregard the opinion testimony of plaintiff’s speed.