ALLEN
v.
GRAND TRUNK WESTERN RAILROAD COMPANY.
Docket No. 22, Calendar No. 45,113.
Supreme Court of Michigan.
Decided June 3, 1952.Edward J. Fallon and Howarth & Allen, for plaintiff.
H.V. Spike, Forbes B. Henderson and J.P. Tryand (Patterson & Patterson, of counsel), for defendant.
BUSHNELL, J.
Plaintiff Preston Allen, who was injured while a guest passenger in an automobile owned and operated by Dr. Earle W. Spohn, has appealed from a judgment of no cause of action entered on the verdict of the trial judge sitting without a jury.
On August 10, 1946, Allen and his wife were invited to be the guests of Dr. Spohn and his family at their cottage on the Canadian side of Lake Huron. Dr. Spohn came to Allen's home northeast of Rochester, Michigan, about 8 o'clock in the evening, and they proceeded towards Port Huron. When they reached Richmond, Michigan, they inquired of a police officer regarding the shortest route, and they *106 were advised to proceed directly ahead on Division, a black-top road, also known as 32-Mile road.
The Grand Trunk railroad tracks cross Division about one-half mile east of Richmond. According to one of plaintiff's witnesses, a surveyor, the highway has a gradual rise of 3 feet 3 inches from a point 250 feet west of the tracks, to the highway crossing. However, another of plaintiff's witnesses, also a surveyor, testified from an examination of certain photographs introduced in evidence, that the road was approximately level at the tracks. There were no crossing gates or automatic flashers, the crossing being marked by a warning sign and the usual railroad-crossing sign. Neither the doctor nor Allen was familiar with the road, and neither was aware of the location of the tracks. The bright headlights of the automobile were on and there were no other lights of any kind in the vicinity or on the eastern horizon.
About 4 minutes before the accident a locomotive with its bell ringing and headlights on had crossed the road, drawing an 85-car freight train. When the train was about halfway over the crossing, it stopped to take on water. The conductor, who was riding in the caboose, testified that he alighted when the train stopped and then saw an automobile approaching from the west at what he claimed was an excessive rate of speed.
Plaintiff testified that Dr. Spohn was driving at about 30 to 35 miles per hour, and that he did not hear any sounds indicating the presence of a train, and saw no lights. Allen insists that the gondola car into which they crashed was not observable within the beam of the automobile headlights, because of the elevation of the tracks; that he shouted a warning to Dr. Spohn, who was unable to stop before the collision.
The conductor testified that after the automobile struck the train he lighted a fusee and ran 45-car *107 lengths to the intersection. He then broke the air hose to prevent movement of the train, and stopped an automobile approaching from the east, and told the occupants to get an ambulance and a doctor.
The hood of Dr. Spohn's automobile was jammed under the body of the gondola. Allen sustained a fracture of the right hip and the neck of the femur, and received severe lacerations about the face resulting in permanent sears. At the time of trial his injured leg was a quarter of an inch shorter than the other, and further surgery was indicated.
The trial judge sitting without a jury concluded that plaintiff had failed to show any negligence on the part of defendant. Allen argues on appeal that it is negligence to permit an unlighted freight train to obstruct a heavily-traveled highway without giving motorists any warning of its presence; that defendant's operating crew was negligent in failing to use the lanterns, flares, and other signal devices with which the train was equipped.
The cases hold that the presence of a railroad train on a crossing is notice and warning to those using the highway, and that railroads will only be chargeable with negligence if there are unusual conditions which require additional warnings. McParlan v. Grand Trunk Western R. Co., 273 Mich 527, 533; and Esterline v. Kennicott, 277 Mich 130, 133. See, also, Simpson v. Pere Marquette Railway Co., 276 Mich 653, and authorities annotated in 15 ALR 901, 56 ALR 1114, 99 ALR 1454.
Plaintiff relies on the fact that the night was dark, the horizon black, as was the surface of the road and the gondola car blocking the crossing. This combination of circumstances is not unusual. He also claims that fog or mist at an elevated crossing on a heavily-traveled highway added to the risk. However, there is conflicting testimony as to these facts.
*108 The trial judge relied on the Simpson Case, supra. In that case the driver of the automobile, after observing a crossing sign 500 feet from the track, had slowed down to 10 miles an hour, and was on the alert for the train. Notwithstanding this exercise of caution, recovery was denied. The trial judge here concluded that, unless he imposed a continuous and permanent duty greater than that required by statute or decision, he was unable to find proof of defendant's negligence. His conclusion was that no condition existed at the time of the collision that would require the imposition of additional duties upon defendant railroad company other than those required under ordinary conditions.
In cases tried by the court without a jury, we do not reverse unless the evidence clearly preponderates in the opposite direction. Benjamin v. Bondy, 322 Mich 35, 40, and Davis v. Randall, 322 Mich 195, 198.
The judgment is affirmed, with costs to appellee.
NORTH, C.J., and DETHMERS, BUTZEL, CARR, SHARPE, BOYLES, and REID, JJ., concurred.