Perch v. New York Central Railroad , 294 Mich. 227 ( 1939 )

On rehearing we have considered defendant's contention that the court should hold as a matter of law that the negligent operation of its train at an unlawful rate of speed and without keeping a proper lookout as it approached the place of this crossing fatality was not a proximate cause of the accident. Our review again brings the conclusion that this issue was one of fact for the jury, not one of law for the court.

Admittedly the automobile which plaintiff's decedent was driving would not have been upon defendant's tracks as its train approached except for the fact that his automobile was negligently struck in the rear by another automobile with such force that decedent's car was driven forward and upon the railroad tracks. But obviously it is equally true that the accident would not have occurred at all if just at that time defendant's train had not been passing over this crossing; and the question narrows down to whether the court can say as a matter of law that the death of plaintiff's decedent would have resulted regardless of whether defendant in the operation of its train was guilty of the negligence charged. Plaintiff charged and offered testimony tending to establish defendant's negligence in two particulars. First, that the engineer as he approached the point of accident failed to keep a proper lookout, and second, that the train was being operated at an unlawful rate of speed.

As to the charge of a failure to keep a proper lookout, there is testimony that notwithstanding at some distance from the crossing in the direction from which the train was approaching there was a curve in the track so that prior to rounding the curve the locomotive headlight was not focused upon the crossing, still in the immediate vicinity of the crossing there were other lights which the jury may have found were sufficient to render the presence of the automobile on the tracks visible; and there is ample room for the fair inference that had the engineer been keeping a proper lookout he could have and should have observed the situation in time to have retarded the speed of his train very materially even though possibly he might not have been able to have brought it to a full stop before the point of collision. But this he failed to do, and instead his own testimony is that he did not see the automobile on the crossing at all. And this is true notwithstanding there is testimony that the automobile was in its perilous position at a time when the train was over 800 feet distant from the crossing. As will be later noted more in particular, the jury might well have found that had plaintiff's decedent had additional time, even to the extent of a second or two, he might have escaped from the automobile and his life been saved. Hence it must be held that the failure of defendant's engineer to keep a proper lookout which resulted in no effort being made to stop the train or lessen its speed may have been found by the jury to have been a proximate cause of the death of plaintiff's decedent. In this connection it may be noted that another passenger in the automobile testified that he attempted to get out of the car but did not have time to do so, and that he also testified to facts and circumstances which clearly tend to indicate plaintiff's decedent was aware of his danger and likewise attempted to save himself.

On the question of whether there is testimony tending to show that a jury may have found as a proximate cause of this accident that this train was being operated at an unlawful rate of speed, the following facts are pertinent. There is testimony that the automobile was on the crossing when the train was 800 feet distant. The engineer testified that at the distance of 800 feet he had an ordinary night view. Thirty miles per hour was the maximum speed at which it was lawful for this train to travel. But there is testimony that after the train with brakes applied had passed some 6 or 8 blocks beyond the point of collision it was still going 45 miles per hour. If it be assumed that it was going at only 45 miles per hour when it passed the crossing, a computation discloses that it took substantially 12 seconds for the train to reach the automobile from a distance of 800 feet. But if the train had been proceeding at the lawful rate of 30 miles per hour the time within which it would have reached the point of collision would have increased by one-half, i.e., to approximately 18 seconds. And it would have taken a still longer time had the engineer observed the automobile standing on the tracks when he was 800 feet back from the point of collision and then made even a service application of the brakes. And what is more important it is stipulated in this case that had the train been going at a rate not to exceed 30 miles per hour it could have been brought to a stop by an emergency application of the brakes within a distance of 700 to 1,000 feet. Bearing in mind that plaintiff's decedent within the short space of a second or two in addition to the time he had might have escaped from the automobile, the court cannot say as a matter of law that operating this train at an excessive and unlawful rate of speed did not deprive plaintiff's decedent of the opportunity to save his life and was not a proximate cause of the accident.

Admittedly the driver of the automobile which struck and propelled the automobile of plaintiff's decedent upon defendant's tracks was guilty of negligence which was a proximate cause of this accident. But notwithstanding this, under the facts disclosed on this appeal it cannot be held as a matter of law that defendant's engineer was not guilty of negligence in the particulars above noted or that his negligence was not also a proximate cause of the accident. This phase of the case clearly presented an issue of fact for the jury. As noted in our former opinion:

"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."

As ordered on the original hearing, the judgment entered in the circuit court should be affirmed, with costs to appellee.

SHARPE and McALLISTER, JJ., concurred with NORTH, J.