Cummings v. Grand Trunk Western Railroad
127 N.W.2d 842
Mich.
1964
Check Treatment
Souris, J.

This is a wrongful death action to recover damages, for the death of a passenger riding-in a southbound- automobile struck by the steаm engine of defendant’s westbound passenger train at a grade crossing. At the conclusion of plaintiff’s proofs the trial judge granted defendant’s motion for a directed jury verdict of no cause. Judge Dondero concluded that, while there was evidence that the railroad was negligent in maintaining an unauthorized and misleading warning sign near the crossing, whether such sign confused the driver of the automobile and thereby caused or contributed to the collision was conjectural. He. stated that at least 2 other theories of causation were equally conjecturally plausible: (1) that the driver of the automobile and plaintiff’s decedent were themselves negligently inattentive; ánd (2) that they deliberately, but unsuccessfully, attempted to beat the train to the crossing. Citing Kaminski v. Grand Trunk W. R. Co., 347 Mich 417, and Walsh v. Grand Trunk W. *697R. Co., 363 Mich 522, the judge ruled that none of the 3 theories of causation he recognized was more plausible than either of the others; that a jury could do no mоre than exercise a conjectural choice between them; hence, that it was his duty to direct a verdict for defendant.

This case, like Emery v. Chesapeake & Ohio Railway Co., 372 Mich 663, also decided today, presents again the question of the applicability of the ‍​‌​​​​​​‌​​‌‌​‌‌​‌​‌‌​‌‌​‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​​​‍rule of conjectural choice discussed so fully by Mr. Justice Black in Kaminski, supra. As in Emery, however, the rule again has been misconstrued with the consequential result that a litigant has been deniеd jury determination of what is a fact issue required to be submitted to the demanded jury. The trial judge recognized correctly that a jury cоuld reasonably infer from the evidence causation between defendant’s negligence and decedent’s tortious death. However, equating such reasonable inference from the evidence with other plausible theories of causation not inferable reasonably from the evidence, he concluded they werе “equiponderant” and, therefore, that to submit the issue to the jury would permit the jury “to engage in an exercise in conjecture,” сiting Walsh, supra.

In Walsh none of the theories of causation remotely plausible was properly inferable from the evidence in the sense that the ‍​‌​​​​​​‌​​‌‌​‌‌​‌​‌‌​‌‌​‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​​​‍evidence could be said to point to any of the theories of causation as a logical sequence оf cause and effect (City of Bessemer v. Clowdus [1954], 261 Ala 388, 394 [74 So2d 259], as quoted in Kaminski, at 422). Under such circumstances, where all theories of causation rest only on conjecture, no jury question was presented. However, as we said in Schoepper v. Hancock Chemical Co., 113 Mich 582, 586, “such cases are rare, and that rule should never be so extended as. to rеsult in a failure- of justice, or in denying an injured *698person a right of action where there is room for balancing the probabilities, and ‍​‌​​​​​​‌​​‌‌​‌‌​‌​‌‌​‌‌​‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​​​‍fоr drawing reasonable inferences better supported upon one side than the other.”

Even more rare will be the case in which a judge can say that 2 theories of causation, one actionable and the other not, find precisely equipondеrant support in evidence. A judge who undertakes to draw with so fine a line risks reversible error because, in the words of Mr. Justice Coоley, “a court of review may reverse his action, not because the facts are differently regarded, but because judges are men and men are different.” 3 Cooley on Torts (4th ed), § 481, p 389. Such fine distinctions should better be left to jury agreement or disagreement. Sеe Carver v. Detroit & Saline Plank Road Co., 61 Mich 584, 593, where the Court, considering the respective roles judges and juries should play in drawing inferences of negligence from the evidence, said:

“In all cases of doubt, the proper method is to submit the evidence to the jury, under proper caution and instructions, to ‍​‌​​​​​​‌​​‌‌​‌‌​‌​‌‌​‌‌​‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​​​‍determine whether, from the facts as they shall find them established by the evidence, negligence ought to be inferred.”'

In the cаse at bar, the evidence was sufficient to support a jury’s finding, on inference, that decedent’s driver was so confused and misled by defendant’s negligently maintained warning sign that he misjudged his distance from defendant’s tracks and failed to commence to stop for its aрproaching passenger train until it was too late to stop without collision. The sign in question was a black and white wooden crоssbuck erected by the railroad on a pole south of the tracks on the west side of the roadway. In other words, as. decеdent’s, driver, ap*699proached the tracks, the sign was on his right-hand side of the road but was beyond the tracks rather than in advance of them аs is specified for such signs the county was required to maintain by CLS 1956, § 469.5 (Stat Ann 1959 Cum Supp § 22.765). Even in broad daylight under the best of circumstances, the locаtion of such a sign would be dangerously deceptive, photographic evidence disclosing not only that the tracks were not visible on southbound approach because of a steep incline of the roadway to a crest along which defеndant’s tracks were laid but also that westbound trains would also be obscured from southbound view by ‍​‌​​​​​​‌​​‌‌​‌‌​‌​‌‌​‌‌​‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​​​‍an embankment, trees and other obstructiоns. The incline was estimated by an expert witness to be about 10 degrees. Judging from the photographs and from a chart in evidencе, the incline begins at a 1-lane bridge over a stream about 160 or 170 feet north of the tracks. Moreover, the collision did not oсcur in broad daylight; it.occurred at dusk and during a March rain on a graveled county road. Following the collision, skidmarks were discovеred in the roadway from a point 30 feet north to the tracks, 4 or 5 inches deep in the roadway’s gravel.

On such record a verdiсt favoring defendant was directed at conclusion of plaintiff’s proofs. None of the evidence then in the record would suрport either of the trial judge’s hypothesized alternative theories of causation; but the evidence would support a jury inference that the driver was induced, with fatal consequences, to believe the grade crossing was farther away than in actuality it was by the railroad’s negligent placement and maintenance of the crossbuck sign, not in advance of the crossing where an approaching motorist normally would expect to find it but, rather, beyond the crossing.

*700Defendant should have been put to its proofs. It was reversible error to direct a verdict for defendant on plaintiff’s proofs, there being sufficient evidence at that point in the trial for the jury reasonably to infer actionable negligence on the part of defendant railroad.

Reversed and remanded. Costs to plaintiff.

Kavanagh, C. J., and Dethmers, Black, Smith, and O’Hara, JJ., concurred with Souris, J. Kelly, J., concurred in result. Adams, J., took no part in the decision of this case.