Mayabb v. Grand Trunk Western Railroad

Dethmers, J. A collision occurred in broad daylight at a railroad crossing between a northbound automobile owned and driven by plaintiff and defendant’s eastbound train. Plaintiff was severely injured physically and rendered mentally incompetent. From judgment for defendant, plaintiff appeals. Plaintiff claims negligence on defendant’s part in the following respects: (1) failure to keep its right-of-way free from bushes and foliage obstructing the view between its train and plaintiff as he approached the railroad tracks; (2) failure to sound its whistle as train approached the crossing; (3) failure to maintain adequate signs warning of the location of the tracks; (4) failure to have train under control and running it at a speed greater than would permit stopping it within the assured clear distance ahead. Defendant claims that plaintiff was guilty of contributory negligence in that, although he lived nearby and was familiar with'the crossing and its loca — 376 — tion, the embankment on which the railroad track was located conld be seen from 1/4 mile south on the road, there was a cross-buck railroad crossing sign at the northwest corner of the crossing, though one was missing at the southeast corner, a standard railroad crossing approach sign was some 250 feet south of the crossing, and the whistle of the train was timely sounded, nevertheless, in spite of all that, he drove his car at from 40 to 50 miles per hour unto the railroad right-of-way and ran into the side of the cowcatcher attached to the front of the locomotive, which, defendant says, was traveling at a rate of 30 miles per hour. Touching the above contentions, the chief conflict in the testimony relates to the blowing of the train’s whistle. The trial resulted in a jury disagreement and the jurors were discharged. Thereupon, counsel for defendant said he felt he was entitled to renew his earlier motion for a directed verdict under CL 1948, § 691.691 (Stat Ann 1959 Cum Supp § 27.1461), but that he now also moved for judgment upon the evidence and proofs taken, under CL 1948, § 691.701 (Stat Ann § 27.1471), applicable in cases of jury disagreement. No reservation was made by counsel for defendant, in connection therewith, as to right to trial by jury if the motion were decided adversely to him. Counsel for plaintiff then arose and said: “If the court please, I would make the same motion on behalf of the plaintiff, that the evidence presented to the jury proved negligence as a matter of _ law; that the damages resulting therefrom and proximate cause were not contested. “The only issue raised in argument was contributory negligence and that there was no evidence to substantiate that, and, therefore, move for directed verdict—rather, judgment for the plaintiff, and ask that the same jury be impaneled to assess damages.” — 377 — He made no reservation in connection therewith. These motions having been made, the court announced that the motion for judgment on the evidence as made by defendant under CL 1948, § 691.701 (Stat Ann § 27.1471), was granted on the basis of the evidence and proofs taken, and also that defendant’s original motion for directed verdict “should have been granted and is now granted” because plaintiff was guilty of contributory negligence as a matter of law. Thereafter, plaintiff’s counsel said that he had not intended, by his motion, to waive his right to jury trial but to reserve it. The court then permitted plaintiff’s counsel to withdraw his motion for judgment, and viewed the case as decided as a matter of law on defendant’s motion for a directed verdict. From the court’s permitting plaintiff thus to withdraw his said motion or, in effect, to place a qualification on it after the court had decided the case on the merits, defendant cross-appeals. A controlling question may be considered to be whether, on this appeal, review is as on a trial without jury to determine whether judgment below is against the clear preponderance of the evidence or is as from a directed verdict or judgment non obstante veredicto for defendant with plaintiff entitled to have the evidence viewed here in the light most favorable to him. Defendant cites Cardinal v. Reinecke, 280 Mich 15, and Shiovitz v. New York Life Ins. Co., 281 Mich 382, for the proposition that when both parties, without reservation, move for directed verdict and a verdict is directed, the case is to be considered as having been left for court decision on the facts, but if either party makes reservation of right to go to a jury, there is no waiver by either. Plaintiff, in turn, cites Kane v. Detroit Life Insurance Company, 204 Mich 357; Burkheiser v. — 378 — City of Detroit, 270 Mich 381; and Arnold v. Krug, 279 Mich 702, as holding that submission by a party of requests to charge negatives his intent to waive a jury trial in making a motion for directed verdict. Also cited is In re Frazee’s Estate, 307 Mich 404, in which counsel’s motion for directed verdict was accompanied by the statement that he hoped that the court would submit the case to the jury without indicating how it felt on certain matters. This Court held that that amounted to a reservation of right to jury trial. In Mellios v. Dines, 341 Mich 175, 181, this Court said: “When, at the close of all testimony, plaintiff made a motion for a directed verdict, and defendants renewed their previous motion for a directed verdict, the court then had the power to decide the issues, as at that time neither motion had any conditions or qualifications attached to it. Subsequently defendants attempted to qualify their motion, but by arguing the cause to the trial court, they waived the right to submit any issue to the jury. Defendants are now estopped to claim that their motion was qualified.” Applicable here is the following from Long v. Dudewicz, 355 Mich 469, 472, 473: “We do not have the usual case of a motion by defendant for a directed verdict or a motion non obstante veredicto, but a situation where both parties unconditionally asked for a directed verdict in their favor. Both parties having asked for a directed verdict, counsel cannot now complain that there was an issue of fact for the jury. The court properly dismissed the jury and considered both the issues of fact and law. Plaintiff, the loser in this case, cannot renege. St. Mary’s Power Co. v. Chandler-Dunbar Water-Power Co., 133 Mich 470; Culligan v. Alpern, 160 Mich 241; Germain v. Loud, 189 Mich 38; Kyselka — 379 — v. Northern Assurance Co., 194 Mich 430; City National Bank v. Price’s Estate, 225 Mich 200; West v. Newton, 229 Mich 68; Mills v. Anderson, 238 Mich 643. “In the case of City National Bank v. Price’s Estate, 225 Mich 200, 212, Justice Steere, writing for the Court, said: “ ‘While there may he room for conflicting inferences from this testimony, both parties without reservation requested a directed verdict and put it up to the court to pass upon whatever the record presented. There was, therefore, no error in the court’s assuming to do so. Culligan v. Alpern, 160 Mich 241; Germain v. Loud, 189 Mich 38; Kyselka v. Northern Assurance Co., 194 Mich 430.’ “In Kyselka v. Northern Assurance Co., 194 Mich 430, 439, 440, Justice Brooke, writing for the Court, said: “ ‘In the light of the dialogue which occurred between the court and counsel for both parties at the conclusion of the case, we are of opinion that counsel cannot now complain even if in the determination by the court a question of fact was involved. Culligan v. Alpern, 160 Mich 241; Germain v. Loud, 189 Mich 38.’ “A similar situation to the instant case is reported in Germain v. Loud, 189 Mich 38, where Justice Ostrander said (p 44): “ ‘While, perhaps, different minds might be differently affected by the testimony which is substantially undisputed—different minds might draw different inferences—counsel for both parties requested the court to decide the controlling question, and it was not error for the court to do so. Culligan v. Alpern, 160 Mich 241.’ “We find the lower court in this instance, in view of the motions of both counsel, acting at the conclusion of proofs in the same capacity he would have acted had the case been tried before him without a jury. — 380 — “In our review on this appeal we find ourselves in the position of determining whether or not there was evidence from which the trial judge could find for the defendant.” In view of the motions of both parties, made without reservations, the case was properly before the court as finder of the facts when he decided it on the merits. As stated in Long, above, after that decision was made plaintiff could not renege, seek a jury trial and have another crack at it. He cannot be permitted to play fast and loose with the court by consenting, in effect, to decision on the facts by the court until such decision is made adversely to him and then seeking to withdraw such consent and to go once again to a jury. Strangely enough, plaintiff still argues in his brief on appeal that he is entitled to a holding here that as a matter of law defendant was guilty of negligence which was a proximate cause of plaintiff’s injury and that he was free from contributory negligence as a matter of law and that the cause be remanded for submission to a jury solely on the question of damages. That is precisely what he asked for in making his motion for judgment. The fact that the parties submitted requests to charge before the case was submitted to the jury does not serve to bring the case within the meaning of Kane, Burkheiser, and Arnold, above, because here the case had already been submitted to the jury under the court’s instructions and the jury had already been discharged when plaintiff’s motion was made. He could not, at that time, in moving for a judgment, be considered to have indicated an intent to reserve right to jury trial and to have negatived his intention to waive a jury solely by reason of his previous requests to charge offered before submission of the case to the jury and before its disagreement and subsequent discharge. — 381 — The trial court erred in permitting plaintiff, after decision of the case, to withdraw or qualify his motion for judgment. Our remaining question, then, is whether the court’s finding plaintiff guilty of contributory negligence, not only as a matter of law, but also as a matter-of fact, is against the clear preponderance of the evidence. The positive testimony of the engineer of having blown the whistle and of disinterested witnesses that they heard it, opposed by negative testimony of others in the vicinity that they had not heard it, testimony concerning the presence of such warning signs as were there, of visibility of the embankment 1/4 of a mile distant on the road, and of plaintiff’s familiarity with the surroundings and location of the track combine to leave the entire question of his contributory negligence one of fact, as to which the court’s decision was not against the clear preponderance. Under the above holding, questions concerning rulings on admissibility of evidence and instructions need not be considered. Affirmed. Costs to defendant. Carr, C. J., and Kelly, Otis M. Smith, and Adams, JJ., concurred with Dethmers, J.