JOSLIN
v.
GRAND TRUNK WESTERN RAILROAD COMPANY
Docket No. 10627.
Michigan Court of Appeals.
Decided July 27, 1971.Thomas L. Gadola, for plaintiff.
Earl C. Opperthauser, for defendant.
Before: McGREGOR, P.J., and BRONSON and O'HARA,[*] JJ.
Leave to appeal applied for.
BRONSON, J.
This is a negligence action brought under the wrongful death act by the plaintiff administrator for the death of his wife, the driver of a motor vehicle who was killed when the motor vehicle she was driving was struck by defendant's train at *311 a railroad crossing on June 9, 1967, in the City of Fenton. The jury awarded plaintiff damages in the amount of $48,000. Defendant appeals from the trial court's denial of its motion for a judgment notwithstanding the verdict and the denial of defendant's motion for a new trial.
The instant case was tried and the jury verdict rendered prior to the Michigan Supreme Court's decision in Breckon v. Franklin Fuel Co. (1970), 383 Mich 251. The trial court's instruction to the jury, based upon Wycko v. Gnodtke (1960), 361 Mich 331, and Currie v. Fiting (1965), 375 Mich 440, made reference to recovery for loss of companionship. Defendant, in its motion for a new trial, informed the court that its instruction regarding pecuniary loss was inconsistent with Breckon insofar as it would permit damages to be awarded for loss of companionship. The trial court denied defendant's motions, but ruled that if its instruction on damages constituted error in view of Breckon, defendant could be granted a new trial as to damages only, unless plaintiff accepted a remittitur of 10% of the verdict. Plaintiff accepted the remittitur.
On appeal defendant contends that: (a) The trial court erred by ordering a remittitur; (b) the case must be reversed in view of Breckon; (c) the trial court erred by not finding plaintiff guilty of contributory negligence as a matter of law; and (d) the trial court erred by permitting plaintiff's witness to testify as to prior accidents at the subject crossing. With defendant's allegations (a) and (b) we agree; with defendant's allegations (c) and (d) we disagree.
The trial judge instructed the jury that they could award damages for loss of companionship. This instruction was erroneous. Breckon v. Franklin Fuel Co., supra; Benson v. Watson (1970), 26 Mich *312 App 142, reversed on other grounds (1971), 384 Mich 804; Haupt v. Yale Rubber Co. (1970), 29 Mich App 225. Although the Breckon decision was rendered subsequent to the verdict in the instant case, the Court in Breckon held that recovery for loss of companionship had never been authorized under the wrongful death act. Defendant has preserved the issue on appeal by timely objection at trial. See Benson v. Watson (1971), 384 Mich 804. Therefore, the holding in Breckon is applicable and controlling in the instant case.
We are unaware of any method which would permit the trial court to determine what portion of this general verdict was based upon loss of companionship. We must hold that the trial court erred by requiring the 10% remittitur.
Defendant's next allegation of error is that plaintiff violated MCLA § 257.667 (Stat Ann 1968 Rev § 9.2367) and therefore was contributorily negligent as a matter of law. The statute provides, in part:
"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.
*313 "(4) An approaching railroad train is plainly visible and is in hazardous proximity to the crossing."
Plaintiff contends that there was no statutory negligence as a matter of law because the evidence created a factual question as to whether the signal was audible under subsection (3); the electrical device clearly visible under subsection (1); and the train plainly visible under subsection (4).
We do not believe it is necessary to set forth the testimony to illustrate the factual questions presented. Basically, defendant called witnesses who had been in near proximity to the accident. Although none of the witnesses approached the crossing in the same direction as the decedent, their collective testimony revealed that the electrical device was seen, the whistle heard, and the approaching train observed.
Plaintiff relied primarily on two expert witnesses and photographic exhibits of the area. One expert testified to the effect on audibility of competing sounds, the presence of buildings, and the distance from the source of the sound. Another expert, an employee of the Michigan Public Service Commission, testified as to the inadequacy of a whistle as a warning to the motoring public at this crossing because of the downtown location and the amount of noise produced by vehicular traffic. Evidence concerning the visibility of the signal device and the train itself were brought forth by the expert testimony and the photographic exhibits of the crossing. The expert testified concerning such matters as how the candlepower distribution curve affects the visibility of a light at any given point and the visibility of light based upon wattage of the bulb. The expert witness had examined the subject crossing following the accident. He observed the location of the signal *314 device as well as the background scenery and the dimensions of the street. It was this witness's opinion that the signal device would have provided minimal visibility. The photographic exhibits illustrated that vision of the train could have been impaired by billboards and surrounding buildings.
We are satisfied, after reviewing the transcript, that sufficient conflicting testimony was presented to create a factual question which was properly submitted to the jury.
Defendant's final allegation of error relates to the trial court's ruling which permitted testimony regarding prior accidents at the subject crossing. The evidence was admissible under the principle announced in Freed v. Simon (1963), 370 Mich 473. See, also, Emery v. Chesapeake & O.R. Co. (1964), 372 Mich 663.
For the reasons stated, the case is remanded to the trial court for a new trial, limited to the question of damages only.
McGREGOR, P.J., concurred.
O'HARA, J. (for reversal and a limited new trial).
This tragic death moves the judicial instinct to find some basis upon which to affirm the awarded damages.
I can find evidence of negligence upon the part of the rail carrier more than sufficient upon which to sustain recovery.
I find no basis for an order of remittitur in any amount. If the railroad is liable, it is liable for the whole jury award. Indeed, if anything, the amount of the verdict was surprisingly modest in view of the proof of damages.
However, I have searched the record diligently and I find no basis for allowing the issue of defendant's *315 pleaded defense of contributory negligence to go to the jury. If this defense is still viable in this state, it was established in this case as a matter of law.
As trenchantly asked upon oral argument by counsel for the defendant, "Upon what testimony does plaintiff rely to create a question of fact as to the audibility of the whistle within the mandated statutory distance of 1,500 feet?"[1] Assuming its audibility however, this does not establish the proximate causality of that contributory negligence.
I would reverse and remand for a new trial with instructions to charge the jury that plaintiff's decedent was guilty of negligence as a matter of law in failing to stop, as statutorily required, upon the railroad having given an audible signal at least 1,500 feet from the highway crossing.
So far as I can learn by diligent research, and research assistance, what I now propose has not yet been done in our state. But I know of no reason why it can't be done.
Upon retrial, I would limit the issue before a new jury to the question of whether or not decedent's negligence in violating the statute was a proximate cause of death. If the jury finds it was, the verdict awarding damages must be set aside. If the jury finds the negligence was not proximately causal, I *316 would reinstate the verdict and the damages in their entirety, and authorize plaintiff to tax costs of all courts.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] MCLA § 257.667 (Stat Ann 1968 Rev § 9.2367). Railroad grade crossings.
"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:
* * *
"(3) A railroad train approaching within approximately 1,500 feet of the highway crossing gives a signal audible from such a distance and the train, by reason of its speed or nearness to such crossing, is an immediate hazard."