Sabo v. New York Central Railroad

Carr, J.

On October 16, 1954, at approximately 5:30 in the afternoon, plaintiffs were riding in an automobile proceeding in an easterly direction on Southern avenue (now John ICronk) in the city of Detroit. Said street was crossed at the time by tracks of the defendant railroad company at approximately a 45° angle, from northwest to southeast. A collision occurred between the automobile and a locomotive that was on, or crossing, the street, and both plaintiffs sustained personal injuries. The cases were tried together in circuit court and verdicts returned in favor of plaintiffs. Defendant moved for judgments notwithstanding the verdicts and, in the alternative, for new trials. The first named motion was denied but the trial judge came to the conclusion that there was error in the charge to the jury requiring the granting of a retrial of the cases. On leave granted by this Court plaintiffs have appealed from said order, and defendant has cross-appealed from the order denying the motion for judgments notwithstanding the verdicts. As noted, the cases were tried together in circuit court and the appeals have been submitted in like manner.

The proofs on the trial of the cases disclosed that it was dusk at the time of the accident and that it was, or had been, raining. The pavement was wet. On behalf of plaintiffs testimony was introduced tending to show that the automobile approached the crossing at a speed of approximately 35 miles per hour. Plaintiff Darlene Sabo testified that she was seated in the car by an open window, that she saw the front of the locomotive suddenly emerge from behind obstacles to her view, and that she at once informed the driver of the car that a train was coming. The brakes were immediately applied, with the result that the car skidded, went into a spin on the wet pavement, struck a utility pole on the side of the street, and then came in forcible contact with the side or front of defendant’s locomotive.

It was plaintiffs’ claim on the trial that defendant was negligent in failing to givé proper warning that its locomotive was about to cross the street. Plaintiff Sabo testified that she saw the locomotive when approximately the front 4 feet thereof was visible, that she was looking directly at the place where it emerged from behind obstacles to view, and that she heard no warning signal given of its approach. In effect, it was her claim that had the whistle or horn been sounded on the locomotive, or the bell rung, she would have heard, because of her attention to details, such signal.

It was claimed on behalf of defendant on the trial of the cases that signals were properly given as the locomotive approached the crossing, that defendant’s equipment had in fact proceeded on the street as the automobile was approaching, that the engineer saw the car and stopped the locomotive, leaving space in front of it through which an automobile might have passed in safety. It was claimed also that the automobile was being driven at an excessive rate of speed as it approached the crossing, and that the sole proximate cause of the accident was negligence on the part of the driver of said vehicle. Defendant’s motion for directed verdicts and for judgments notwithstanding the verdicts was predicated on the claim that there was no evidence on which to base a finding of negligence on the part of the employees in charge of the railroad operation.

Our review of the testimony brings us to the conclusion that defendant’s negligence was, under the proofs, a question of fact for the jury. The witnesses for the parties were not in accord as to precisely what happened with reference to the movement of the locomotive or the giving of warning signals as it approached and entered the highway intersection. It may be noted in this connection that certain witnesses for defendant who were in a position to hear the warning signals, if they were given, were uncertain as to the actual fact. Plaintiffs’ proofs were sufficient to present an issue of fact which the jury apparently determined in their favor. The trial judge was not in error in denying defendant’s motion for the entry of judgments in its favor. The situation here is not analogous to that involved in Dalton v. Grand Trunk Western R. Co., 350 Mich 479, to which counsel have called attention.

This brings us to a consideration of plaintiffs’ claim that the trial judge abused his discretion in granting the motion for a new trial. Said motion was based on claims of various errors in the charge as given, and also on the failure to give certain requests to charge submitted by counsel for defendant. The trial judge in passing on the motion summarized the situation as follows:

“Defendant contends, however, that assuming the propriety of submission to the-jury, the court erred in its charge. Several allegations of error are made, including the allegation that the court committed error in the following fashion: After describing Nancy Bardizian’s claims as to injury as involving a fractured nose and an injury to the periorbital muscles of the right eye, the jury was instructed: ‘This doesn’t take from you the right to accept, reject or expand it.’ This is an incorrect statement of the law. That the jury has no right to expand on injuries beyond the scope of the evidence is so well settled as not to require the citation of authority. The court’s instruction permitted the jury to speculate that plaintiff might have suffered other injury in the accident for which she should be compensated.

“Although the court cannot say with any degree of certainty that this misstatement of the law influenced the verdict adversely to defendant, it cannot say, on the other hand, that it did not, and defendant has a right to have the case submitted to the jury with a correct statement of the law.”

The statement in the charge characterized as incorrect doubtless resulted from an inadvertent choice of terms. How the jury actually construed it is a matter of conjecture. It is possible that it did not enter into the deliberations at all. However, we cannot say with any degree of assurance that it did not do so. The situation is somewhat analogous to that in Warner v. Beebe, 47 Mich 435, in which the trial judge submitted the case to the jury on 2 theories, one of which the Supreme Court held improper under the facts and the law applicable to the case. Commenting on the situation, it was said "(p 439):

“The jury found a general verdict and we cannot know whether they acted on this part of the charge or on the other which has been shown to be unsound and misleading, or whether they may not have divided, with some sustaining one theory and the rest agreeing with the other. There must consequently be a new trial, and it is not possible to know whether the case hereafter will, or will not, stand on the same basis of fact as at the trial under review. Osburn v. Lovell, 36 Mich 246.”

In Herzberg v. Knight, 289 Mich 29, the trial court gave an erroneous instruction but in other portions of the charge to the jury stated the correct rule. The erroneous instruction was held to he reversible error. This Court, speaking through Justice Wiest, posed the pertinent inquiry (p 34) “which rule did the jury follow?” A similar situation existed in Socony Vacuum Oil Co. v. Marvin, 313 Mich 528, where the holding in Herzberg v. Knight, supra, was followed.

As the trial judge pointed out in the instant case, it may not be said positively either that the jury was misled to the prejudice of the defendant, or that such result did not follow. In view of the situation presented, this Court cannot say that the trial judge abused his discretion in granting the motion for a new trial. As has been repeatedly recognized in prior decisions of this Court, the granting or denial of a new trial rests largely in the discretion of the trial judge. Murchie v. Standard Oil Company, 355 Mich 550, 562.

The orders from which the appeals have been taken are affirmed, but without costs, neither appellant nor cross-appellant having affirmatively prevailed. •

Dethmers, C. J., and Kelly and Edwards, JJ., concurred with Carr, J.