Perch v. New York Central Railroad ( 1939 )

ON REHEARING. Plaintiff, as administratrix of the estate of George Perch, seeks to recover damages arising from a railroad crossing accident which caused the death of her husband, Mr. Perch. Shortly before 1 o'clock on the morning of May 13, 1937, plaintiff's decedent was driving a Dodge automobile north on Lonyo road in the city of Detroit. This road runs north and south and is intersected at right angles by six sets of tracks of the defendant railroad company. As plaintiff's decedent, proceeding in a northerly direction, approached defendant's tracks, the railroad crossing gates were down and one of defendant's westbound passenger trains was approaching. Mr. Perch stopped his car. As his car stood about 25 feet south of the crossing gates, another automobile driven in a negligent manner by one Roy Walton struck the Perch car in the rear with such force that it was knocked through the gates, across four sets of intervening tracks and came to rest on the fifth set of tracks upon which the train was coming. It was approximately 92 feet from the point where the car of plaintiff's decedent was standing south of the gates to the point where it stopped on defendant's westbound main track. Upon trial by jury plaintiff had verdict and judgment was entered thereon. Defendant contends that the proximate cause of this accident was the negligent act of Roy Walton, in consequence of which he was tried and convicted of the crime of negligent homicide. On this appeal appellant claims its motion for a directed verdict and its later motion for judgmentnon obstante veredicto should have been granted on the ground that as a matter of law Walton's negligence was the proximate cause of the accident. The sole question is whether this contention on the part of appellant is correct.

These additional facts are pertinent. As the automobile which plaintiff's decedent was driving was standing south of the railroad gates, defendant's train was approaching approximately 800 feet from the crossing and at a rate of speed in excess of 45 miles per hour. For a distance of 315, feet east of the center line of Lonyo road defendant's track is straight, but beyond that point it veers to the north-east on a three-degree curve. Because of this curve the headlight of the locomotive approaching Lonyo road was shining south of the crossing and did not light the place where the automobile came to a stop on the track until the locomotive had passed around the curve and had reached a point directly east of the crossing. But the record discloses there were numerous other lights in the locality which rendered objects on the crossing visible at least to some extent. The engineer did not see the automobile prior to the impact. The fireman's view was obstructed by the boiler of the locomotive as it rounded the curve and he did not see the automobile until practically the instant it was struck. It was at this time that the engineer made a heavy service application of the brakes; but the train continued to travel a distance of approximately 1,500 feet. The engineer testified that even with the aid of the headlight on the locomotive he could not see more than 500 feet ahead; and further when 700 or 800 feet east of the crossing he could not see the south side of the crossing where the Perch automobile was presumably then standing. The train weighed substantially 1,500 tons, and there is testimony that at a speed of 30 miles an hour it would go from 700 to 1,000 feet after an emergency application of the brakes before coming to a stop, and at 60 miles per hour it would go 2,500 to 3,000 feet before stopping.

As above noted, appellant asserts that under this record the court should have held as a matter of law the proximate cause of this unfortunate accident was the wrong-doing of Roy Walton; but on the other hand plaintiff contends that the proximate cause of the accident was the negligence of defendant's employees in failing to discover plaintiff's decedent in his place of danger in time to avoid the accident and also negligence in operating the train at a rate of speed in excess of that provided by the city ordinance, i. e., 30 miles an hour. In this connection plaintiff asserts the collision occurred so soon after the Perch automobile stopped on the track on which the train was approaching that her decedent did not have time or opportunity to get out of the automobile.

Appellant's contention that Walton's negligence was the sole proximate cause cannot be sustained. The trial court, after advising the jurors as to the legal significance of "proximate cause," instructed them as follows:

"You will observe in order to entitle her to recover plaintiff must establish by a preponderance of evidence: (1) That the defendant was negligent. (2) That such negligence was a proximate cause of the collision between the car which George L. Perch was occupying and the train."

Clearly there is abundant evidence of negligence both on the part of Walton and of defendant. On this record it cannot be said as a matter of law that the negligence of either was thesole proximate cause. Instead the jury may well have found that the negligence of each of these was a proximate cause.

"There may be more than one proximate cause for the same injury, and the mere fact that some other cause co-operates with the negligence of the defendant to produce the injury for which suit is brought does not relieve him from liability. 2 Blashfield, Cyclopedia of Automobile Law, p. 1204."Camp v. Wilson, 258 Mich. 38.

See, also, Fitzcharles v. Mayer, 284 Mich. 122, 128 (3 N.C. C. A. [N. S.] 565).

"It is elementary that where injury results from the concurrent negligence of two or more, each proximately contributing to the result, recovery may be had against one or more." Banzhof v. Roche, 228 Mich. 36.

"The two contributing causes must be held to be concurring where, as in this case, * * * the concurrence of both was essential to produce the injury." Welch v. Jackson BattleCreek Traction Co., 154 Mich. 399, 408.

Defendant's alleged negligence, as the jury must have found, continued to the very instant of the impact and injury to plaintiff's decedent. There was no other intervening independent cause. On this record it cannot be said as a matter of law that defendant was not guilty of the alleged negligence or that such negligence was not a proximate cause of the accident and injury to plaintiff's decedent.

Defendant in support of its position relies uponLineberry v. Railway Co., 187 N.C. 786 (123 S.E. 1); Thompson v. Railroad Co., 195 N.C. 663 (143 S.E. 186); and Johnson v.City of Omaha, 108 Neb. 481 (188 N.W. 122). We think each of these cases is readily distinguishable from the instant case. In each of the cited cases a defendant was held not liable as a matter of law. This conclusion was reached because it conclusively appeared that the sole proximate cause of the injury was the wrongful act or negligence of a third party. In other words, in each case the injury would have been suffered wholly regardless of the negligence charged against the defendant which the court held, as a matter of law, was not liable. There is testimony in this record from which the jury might well have found that both the negligence of Walton and the negligence of defendant were proximate causes of the accident. Further, under the circumstances here presented, it quite conclusively appears this accident would not have happened except as the result of concurrent negligence on the part of both Walton and defendant.

The judgment entered in the circuit court is affirmed, with costs to appellee.

BUTZEL, C.J., and WIEST, BUSHNELL, SHARPE, POTTER, CHANDLER, and McALLISTER, JJ., concurred.