Winchell v. Detroit & Mackinac Railway Co.

Danhof, C.J. On October 9, 1973, plaintiff, Molly Winchell, and her infant daughter, decedent Karen Sue Winchell, were riding as passengers in a car being driven by plaintiffs husband, third-party defendant Elmer Winchell. The decedent was killed and plaintiff injured when the car collided with a moving Detroit & Mackinac Railway Company train at a marked crossing in Iosco County. The accident occurred at approximately 6:30 p.m. On December 4, 1975, plaintiff filed a complaint alleging that the defendant railroad’s negligence caused the accident. Defendant then filed a third-party complaint against defendants Iosco County Road Commission and Elmer Winchell alleging that their negligence was the proximate cause of the collision. The Road Commission was later dismissed as a party defendant. Plaintiff specifically claimed that the train engineer failed to sound a proper warning with the engine’s whistle as the train approached the crossing. At the trial, which began on October 17, 1978, conflicting testimony was presented on the question of whether and when the whistle was sounded. On October 20, 1978, the jury returned a verdict of no cause of action. Plaintiffs motion for a new trial was denied on March 14, 1979, and she now appeals as of right. Plaintiffs first argument on appeal is that the trial court erred by refusing to give her requested instruction on the doctrine of comparative negligence. That doctrine was adopted in Michigan to eliminate the harshness of the contributory negligence rule. Placek v City of Sterling Heights, 405 [437] Mich 638; 275 NW2d 511 (1979). It applies where both the plaintiff and defendant were negligent. In the present case, the court instructed the jury that plaintiff and plaintiff’s decedent were free from any negligence as a matter of law. Defendant had never claimed that they were negligent, but did assert that the negligence of Elmer Winchell, who was driving the car, caused the accident. His negligence could not be imputed to the other occupants of the car; therefore, the comparative negligence doctrine did not apply. Bricker v Green, 313 Mich 218; 21 NW2d 105 (1946), Sherman v Korff, 353 Mich 387; 91 NW2d 485 (1958). Next, plaintiff claims the trial court erred by instructing the jury that "[u]nder the Michigan law, there’s no duty for a railroad to reduce its speed until it realizes that a car won’t stop”. This instruction was correct according to Buchhal v New York Central R Co, 334 Mich 556; 55 NW2d 92 (1952). Plaintiff argues that the trial court improperly instructed the jury, over objection, on the assured clear distance rule and the stop, look and listen rule. The following instruction was given based on the assured clear distance statute, MCL 257.627a; MSA 9.2327a: "I further charge you that Third-Party Defendant, Elmer Winchell, had a duty to operate the motor vehicle in a careful, prudent and lawful manner, to have the motor vehicle under safe control and operate the same at a safe and reasonable rate of speed and in such manner as to avoid collision with other persons and vehicles lawfully upon such highway under the conditions then and there existing in accordance with the statutes of the State of Michigan. "Now, I’ve mentioned certain statutes. We have one called the Assured Clear Distance, and that was just commented upon in that last reading. Any person driv [438] ing a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper having due regard to the traffic surface and width of the highway and of any other condition then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.” Plaintiff relies on the "sudden emergency doctrine”, which holds that the assured clear distance rule does not apply where an object suddenly intersects the assured clear distance of the motorist. Fisher v Grand Trunk Western R Co, 306 Mich 95; 10 NW2d 321 (1943), Green v Richardson, 69 Mich App 133; 244 NW2d 385 (1976), lv den 397 Mich 852 (1976). In the present case, the evidence indicated that the driver was unaware of the presence of defendant’s train until it suddenly appeared from behind bushes and trees near the crossing. Therefore, the statute did not apply and the instruction should not have been given. Plaintiff also challenges the following instruction, which was based on MCL 257.667(a); MSA 9.2367(a):1 [439] "There’s another statute that I shall read in this connection. Whenever any person driving a vehicle approaches a railroad grade crossing under any of the following circumstances the driver shall stop within 50 feet but not less than 15 feet from the nearest rail of the railroad and shall not proceed until he can do so safely. Among the circumstances listed in this statute that I find material are as follows: Number Three, a railroad train approaching within approximately 1500 feet of the highway crossing gives a signal audible from such distance, and the train by reason of its speed or nearness to such crossing is an immediate hazard. If you find, therefore, that Elmer Winchell violated this statute before or at the time of the occurrence, then, he was presumptively negligent as a matter of law, but this may be rebutted by showing of adequate excuse from all the facts and circumstances in this case, and, of course, you also in applying that statute must find that the circumstances existed that of giving the audible 1500 — 1500 feet of the highway crossing gives an audible signal. That’s the circumstances bringing into operation that statute.” We do not believe that the cases relied on by plaintiff, McKinney v Yelavich, 352 Mich 687; 90 NW2d 883 (1958), and Beasley v Grand Trunk W R Co, 90 Mich App 576; 282 NW2d 401 (1979), are controlling. In those cases, the common law rule that automobile drivers are guilty of contributory negligence as a matter of law in railroad crossing accident cases if they do not stop, look and listen before crossing the track was criticized and abandoned. The statute involved in the present case is not a codification of that rule. It only requires that a motorist stop at the tracks when some type of warning has been given or an approaching train is visible. Violation of a statute constitutes negligence per se, although whether or not the violation was the proximate cause of the accident is a question of [440] fact for the jury. Morton v Wibright, 31 Mich App 8; 187 NW2d 254 (1971), Shepherd v Short, 53 Mich App 9; 218 NW2d 416 (1974). The instruction in the present case informed the jury that the statute was applicable only if the jury found that the train whistle was properly sounded. We do not find that the giving of this instruction constituted reversible error. The disputed instructions pertained only to the negligence of third-party defendant Elmer Wine-hell. The jury was instructed to consider his negligence only if it found defendant railroad liable to plaintiff. The form of the verdict and the instructions given indicate that the jury either found the railroad was not negligent or that any negligence on its part was not a proximate cause of the accident. The erroneous instruction on the assured clear distance statute does not constitute reversible error because the jury never reached the question of Elmer Winchell’s negligence. Affirmed. G. R. Corsiglia, J., concurred. Footnotes [1] "Sec. 667. (a) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the following circumstances the driver shall stop within 50 feet but not less than 15 feet from the nearest rail of the railroad, and shall not proceed until he can do so safely: "(1) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train. "(2) A crossing gate is lowered or a human flagman gives or continues to give a signal of the approach or passage of a railroad train. “(3) A railroad train approaching within approximately 1,500 feet of the highway crossing gives a signal audible from such distance and the train, by reason of its speed or nearness to such crossing, is an immediate hazard. "(4) An approaching railroad train is plainly visible and is in hazardous proximity to the crossing. “(b) No person shall drive any vehicle through, around or under any crossing gate or barrier at a railroad crossing while such gate or barrier is closed or is being opened or closed.”