*1 386 Mich 598 598 OF v COUNTY BOARD EBEL SAGINAW COMMISSIONERS ROAD the Railroads—Crossings—Warnings—Negligence—Instructions. 1. you jury, if believe from evidence to the “that Instruction crossing, because of the existence that this [railroad] bar- signal, pedestal, or crossing stanchion center of the road dangerous accident, unusually was rier the time of the at known highway], that fact was travelers [a ordinary care exercise of or defendants [railroads] duty of by them, it was the known then should have been clerks, agents to such defendants, servants and use their injury prevent means to to travelers other accurate, law”, adequate or because permitted unusually danger- conditions were is not whether the test ordinarily test of ous, what was done met the but whether similar prudent man same or circumstances. under the Duty Safety Warnings — — Negligence — — 2. Railroads Regulations. warnings require provide over duty may it to A of care railroad’s safety regula- by statutory law required and above those unusually tions; were is not whether the conditions the test dangerous, was done under the circum- whether what ordinarily prudent man under met test of an stances or similar circumstances. same por in Headnotes Points References seq. Jur, et 44 Am 506 Railroads § I] Jur, 2-4,12] Am Railroads 514. 44 § 2d, Am58 Jur Nuisances Nuisances 1.§ 3] 2d, Am 1. 58 Jur § '5] 2d, 58 228. Jur Nuisances Am § 7] 2d, 2d, 141. Nuisances 58 Am Jur Jur 58 § 8] 9] seq. et New Trial Jur, 58 Am Witnesses § TO] seq. et Jur, 58 Am Witnesses § II] Saginaw Road Commissioners Ebel Railroads—Negligence—Public Service Commissions—Instruc- tions. not find defendant railroads to the that it Instruction *2 maintaining signals installing negligent for and flasher they required by of a road since were to do so the center was neither an accurate state- Public Service Commission sufficiently nor informative because com- ment of the law for installation and pliance commission’s order with the warning devices should be considered maintenance of certain negligent, determining a railroad was jury in whether compliance aas matter of law that but it cannot be said negli- from equated is as freedom such an order to be with gence. Railroads—Highways—Public Commissions—Nuisance Service 4.
—Instructions. complete legislature has control jury that the Instructions to the complied highways and since defendant railroads over the relative to Commission orders of the Public Service with the crossing they could installed at a railroad flashers that were maintaining charged a nuisance at the not be with inadequate, because the misleading quite were at least jury all cir- under question nuisance is one for the crossing. of an accident at cumstances and Phrases. 5. Nuisance—Words variously and is so defined been “nuisance” has The word from the comprehensive must be determined that its existence of each case. facts and circumstances Service Commissions—Railroads. 6. Nuisance—Public “criminal”, “civil” or “private”, “public” or A nuisance be regulatory commission orders of a compliance with the usually held are Commission such as Public Service nuisance; how- “public” “criminal” preclude charge of or a com- all circumstances ever, said that under it cannot be a railroad absolves of the commission pliance with an order in fact. maintaining nuisance liability a from 7. Nuisance—States. nuisance; hence, it cannot maintain agency is free to No state person do so. permit require or another Nuisance—Railroads—Jury Question. warning authorized device of a Whether the maintenance crossing, under a railroad Commission the Public Service 386 Mich all the circumstances of an crossing, accident at the was a or jury.
nuisance not should have been left to the 9. New Trial—Instructions.
An action must remanded for a new trial where the adequately properly was not instructed. Witnesses—Depositions—Impeachment 10. Witnesses—Deceased —Inconsistent Statements. Allowing produce testimony defendants to of two witnesses who asserted that a deceased witness had made in- statements consistent testimony deposition with the her improper necessary lay because it proof prior foundation for inconsistent statements and where the witness has died impossible lay properly; prior foundation hence incon- sistent statements cannot be shown. Attorney Client—Cross-Examination—Interrogatories. Trial properly court grant refused to a motion to cross-examine attorneys prepared interrogatories. who answers to
Dissenting Opinion Brennan, Black and T. E. JJ. Railroads—Counties—Nuisance—Warning Signal—Statutes —Public Service Commission.
Courts will not hold conduct to constitute a nuisance where authority by legislative enactment; exists virtue therefor therefore, plaintiff to malee out cause submissible failed pleaded theory recovery under his pedestal support- that a ing grade-crossing warning signal constituted an actionable defendants, county nuisance where a board road commis- sioners companies, and two railroad constructed main- signal specific tained accord with a valid order Commission, unchallenged, Public Service which order was both jurisdiction as to and the manner in which defendants proceeded to execute the order. from Appeal Court of Division H. Appeals, 3, J. P. J., and Gillis, McGregor Quinn, JJ., affirming Saginaw, R. Hazen J. Submitted Armstrong, Octo- ber (No. October Term 1971 Docket No. 52,715.) Decided February 25, 1972.
21 Mich App reversed. Saginaw Road Commissioners Ebel op the Court the Board Ebel Henry against J.
Complaint by New York Road Commissioners, County Saginaw Grand Trunk West- Company, Railroad Central for from damages resulting Railroad Company ern collision with a road of a pedestal automobile for Judgment defendants. crossing signal. railroad Af- Appeals. to the Court of appealed Plaintiff remanded Plaintiff Reversed and appeals. firmed. for trial. new
Heilmcm, Purcell, Tunison & Cline, for on plaintiff appeal. Chálelos,
Davidson, Jungerheld S Hoffmann, defendant Board of Road County Commissioners of Saginaw.
Patrick E. Hackett, for defendant Penn Central Railroad New Company York Central (formerly Railroad Company).
Earl C. Opperthauser, for defendant Grand Trunk Western Railroad Company.
T. G. J. case This involves the duty Kavanagh, of a provide railroad to adequate warnings cross- ings public and railroad tracks. highways stated
As Court of facts are: Appeals,* the August 18,1963, plaintiff 1:30 a.m. “About driven his wife. He in an automobile a passenger *4 with a when that collided automobile injured which a rail- supported pedestal center-of-the-road maintained road flasher signal placed an order the defendant railroads to pursuant dated April Public Utilities Commission Michigan 11, App (1970).
*21 Mich 386 Mich Opinion op the Court “Plaintiff this commenced action to recover for his on injuries February It 17, was plaintiff’s contention that defendants were jointly negligent maintaining center-of-the-road pedestals con- to CLS 469.5 trary 1961, § Ann 1963 (Stat Cum Supp 22.765) § and CL 469.8 (Stat Ann § 22.768), and that were for they liable maintaining nuisance thereby. Pursuant to jury verdict a judgment of no cause action entered. Plaintiff’s motion for new trial was denied, and he appeals from the judg- ment and denial of the for motion new trial.” Court of Appeals affirmed.
The plaintiff states six issues on three appeal, essentially with the dealing court’s on ad- rulings missibility evidence, three essentially dealing with the court’s instructions to the jury. consider trial will first court’s instruction
We to the jury.
Counsel for submitted plaintiff requests included in the charge which, although not appendix, asked for apparently specific instruction with re- railroads’ spect the defendant common-law du- ties. The references thereto are contained in the transcript the rulings, arguments and objections to the charge:
“The Court: Plaintiff’s Request Number 8 will not be given.
“Mr. Egloff: Plaintiff objects the failure of the to give Request Plaintiff’s Number 8 because charge, opinion plaintiff, states law of the case that is tried being before this Court, it sets forth the fact that railroads have common law duty, over and above statute, remove hazards their crossings with roads. public We feel that failure to give that, your Honor, preju- dicial to the plaintiff. “Mr. Hackett [attorney N.Y.C. Railroad]:
Your Honor, would it prolong you too do much, *5 Saginaw 603 Ebel Road Commissioners op the Court if we were to state improper it be or would
feel, not be given? should we feel it should or briefly why really help- I it would Court: think “The don’t me at this time. ful to Honor.
“Mr. Hackett: your Thank you, 9 Number will “The Court: Request Plaintiff’s be given. of the failure the Egloff: “Mr. Plaintiff to objects Number 9 to the jury. to Request Court its give charge shown by of fact that the This is because the of law the duty a common 9 states Number Request it believe statutes, the railroads, being it above not to charge for this is to plaintiff this prejudicial be given. Number 9b will
“The Court: Request Plaintiff’s not be given. of
“Mr. Egloff: Plaintiff to the failure objects 9b in Number Plaintiff’s Instruction Court to give Michigan regard of it the common law states Road and the at Shattuck to the railroad of to location regard defendants duties the road. in the center of or barriers said stanchions give Court failure of the Plaintiff believes that plaintiff. error to this this instruction prejudicial 9c will “The Request Number Court: Plaintiff’s not be given.
“Mr. the failure Egloff: Plaintiff objects 9c Number Request Plaintiff’s give for the reason charge plaintiff’s requests that there is the case, states the plaintiff’s theory board and in the nuisance in railroads public law of the common of road It states commissioners. law statutory well Honor, as Michigan, your to give failure Michigan, State plaintiff. to the request prejudicial failure to the “Mr. objects Egloff: plaintiff Num- Charge Requested Plaintiff’s the Court to give 386 Mich 598 Opinion of the Court ber for tbe reason that forth sets the common law duties of railroads their crossings, as set forth in the case of v. Emery Chesapeake & Ohio Railroad Company, Michigan, 663, that it also *6 sets out the duties far as as the board county of road commissioners are concerned with regard to cross- ings. The failure of the Court to give charge would unduly prejudice the plaintiff.
“The Court: I believe we have now completed Mr. EglofPs requests.” elsewhere
Additionally plaintiff’s repeat- attorney edly unsuccessfully objected the defendants’ re- quests the charge grounds on that they neglected defendants’ common-law duties, after the jury was the charged following took colloquy place:
“Mr. Egloff: please May at Court, this time the plaintiff will renew objections his to the Charge of the Court.
“We will also make the additional objection the Charge as I given was by Court, unable to follow it too much by our I had charges here, move I think around, had them in disorder as to what they were originally, to the object of Charge the Court in that not does state the common law duties of these railroads and the road commission, your Honor, as set forth in v. Emery Chesapeake & Ohio Railroad 372 Mich- Company, igan,
“The Court: The Court will stand by Charge.” its From our of reading charge as given, only part it which could be construed as treating the railroads’ common-law duties reads:
“I further charge you, Jury, Members if from you believe the evidence that this crossing, because of the existence the center road of the crossing signal, at the pedestal, stanchion or barrier Saginaw v Ebel Road Commissionees Opinion or the Court the accident,
time of was unusually dangerous travelers said highway, Shattuck namely, Road, and that fact known to the defendants or exercise of care ordinary should have been known then it by them, was the duty defendants, their clerks, servants and agents to use such other means to prevent injury travelers permitted law.” or accurate. regard adequate this as
We do R Co, & O 372 Mich Emery Chesapeake In R Co, v Ann Arbor Baldinger (1964), treated extensively Mich 685 this Court (1964), conditions” or circumstances” the “unusual “special “local and reaffirmed the warnings” rule, long rule that the railroad’s care duty due standing toit over and above may require provide warnings law required by regula those statutory safety *7 The test not were tions. whether the conditions but unusually whether what was done dangerous, under the circumstances met the test of an ordinar prudent man under ily the same or similar circum stances.
The court’s further instructions: “The statutes of this State control of place safety devices at railroad crossings within the highway of the Public Service Commission. authority When that commission has ordered certain de- protection not the of either the railroad or this vices, duty Court to decide that some other should have signals been installed been or that should have located they I you at a different place. Consequently, charge that with the orders of complied since the railroad the commission that devices, these concerning safety devices there can no relative to such negligence be in case. chargeable to the railroads flashing street “I that center of the charge you maintained thereafter lights were installed and here the defendants crossing by the Shattuck Road Mich Opinion op the Court compliance Michigan with in tbe order Public Utilities Commission and the order of the commis plaintiff’s sion still in on the force date required by accident. were defendants law to obey the order and commission’s to maintain the signals flashing light they as were until the commis changed sion its order. In addition, statute of the prohibited Michigan State of the defendants from removing to do signals authority these railroads without *# * charge you you Therefore, so. may and negligent installing find the defendants for maintaining signals the flasher center they required by Shattuck Road since were law to do so,” of the law or
are neither accurate statement Compliance sufficiently the com- informative. with installation mainte- orders mission’s among warning certain nance of devices are certainly circumstances and evidence the should determining consider in whether railroad was negligent, cannot as matter law be compliance with such commission’s order is equated negligence. be freedom from as jury: also
The court instructed the Legislature complete “The this State has con- highways trol over the of this State. Inasmuch complied the railroads with the orders the Mich- igan Public Service Commission relative to the flashers crossing, were installed at the Shattuck Road
they charged maintaining with cannot a nuisance.” *8 misleading quite
This at least is instruction inadequate. variously
The word has been defined “nuisance” comprehensive and is so that its must be existence from determined the facts and of circumstances each case. Saginaw Road Ebel v Commissioners op the Court that, has been said the term accurately used,
“It activi- applicable only ‘nuisance’ to conditions or which threaten injury persons ties outside a public either premises, upon highway defendant’s or in the upon premises neighborhood.” others Nuisances, 1, p In 2d, Jur a nuisance or may “public” “private”, Since “civil” or with orders of “criminal”, compliance a commission the Public Service regulatory such as are held Commission, usually preclude a charge “public” or “criminal” It nuisance. cannot be said however that under all circumstances compliance with an order of the commission a railroad absolves from liability in fact. nuisance maintaining See 58 Am Jur 833- 2d, Nuisances, 229, pp §§ free to maintain nuisance, agency
No state or cannot another require person hence it permit do so. the maintenance of the device warning
Whether authorized at all the circum- under a nuisance or stances this accident was not should have been left to the jury. are from
We satisfied our examination charge whole adequately was properly instructed and accordingly must remand for a new trial.
Because on the retrial of this matter the same question evidentiary arise we rulings also address ourselves to the asserted. errors
The plaintiff’s wife, who was the car driving the time of the accident, deposed pursuant was notice and her deposition read into evidence at the trial. After making the deposition and before the trial she died.
At trial, for the purpose attacking the credibil- ity the deposing witness, defendants were allowed *9 Mich 598 386 608 by Black, Dissenting Opinion J. who witnesses as- of two the testimony
to produce incon- deceased wife had made statements serted the in deposition. her testimony sistent with has held long hold this improper. Michigan We a foundation for proof is necessary lay Sawyer v Sawyer, inconsistent statements. prior McNett, Connell v 109 (Mich, 1842), Walk Ch 48 Rogers Blandon, Mich also v 294 (1896); see as Where, here, Mich 699 has (1940). witness and his in the trial died, testimony way his reading deposition, impossible lay foundation and hence properly prior inconsistent cannot shown. statements Jur, Wit Cf. nesses, 769, p 421. re- trial court’s rulings error in the
We find no of the Public of the file admissibility garding Road the Shattuck crossing. Service Commission on the court’s refusal we find error Neither do the attor- cross-examine motion to grant plaintiff’s answers to the interrogato- prepared who neys ries. trial. remanded for new and
Reversed to plaintiff. Costs and J.,
T. C. Swainson, M. Kavanagh, Adams, J. concurred with T. G. JJ., Kavanagh, Williams, 3 Mich (21 With Division (dissenting). J. Black, to make failed out agree plaintiff App 103) of re theory pleaded cause submissible under his and the the verdict covery, for that circuit court should reason judgment lie sustained. warn- grade-crossing pedestal supporting having constituted
ing signal, by plaintiff and maintained actionable was constructed nuisance, with a valid by the defendants specific accord Saginaw Road Ebel Commissioners Dissenting Opinion by Black, J. order of the Public Service Commission, it is perceive difficult to how or what lawful means defendants might proceeded have otherwise, the ju- risdiction of the commission considered. *10 1928 April the 11, being order of commission
unchallenged, both jurisdiction as to the manner in which the defendants proceeded to execute that the order, general rule that applies. It is the courts will not hold conduct to constitute a nuisance where therefor authority exists virtue by legislative en- actment. The authorities are gathered in 58 Jur 2d, 228 et Nuisances, seq. § under heading “C. Legislative or Municipal Authority,” pp 831-841. The first paragraph “C” topic above, beginning states the rule would apply:
“Generally, the courts will not hold conduct a constitute nuisance where authority therefor exists by virtue of legislative enactment, and there are numerous statements in the cases to the effect that although otherwise would be the doing of that one, which the law authorizes cannot abe nuisance, or a such nuisance will give common-law right action. It has been also held when the legis- lature directs or allows that be which done would otherwise be a it will nuisance, be valid on the ground the legislature is ordinarily proper judge of the public what good requires, unless car- ried such an extent that it can fairly said to be unwholesome unreasonable law. The author- ities are that the in- agreed legislature may legalize, sofar as what would public is other- concerned, wise abe public nuisance, according to some of courts, legalize what would otherwise be may as to private nuisances, so prevent recovery injunction or relief on account damages way of is to con- them, weight of authority It trary. has been held the legislature Mich court, enjoined been which has an act legalize in a suit consideration has under the court which for its abatement.” cast affirm. vote is
My with J. E. concurred J., T. Black, Brennan, CARTER v KELSEY-HAYES COMPANY *11 Compensation—Disablement—Disability—Notice 1. Workmen’s Employer—Statutes. . to timely right disablement or employer notice of meaning Compensation disability within the Workmen’s provide right, purpose is to Act is of which substantial alleged injury opportunity inquire an into the while though assessable, such be oral or facts are notice written, reasonably of the com- employer it must inform the employer only informed pensable incident; must not disease), injury by (whether accident or as to the incident 417.10). disability (MCLA also that has resulted therefrom Compensation—Findings—Factual (cid:127) Basis—Disable- Workmen’s Employer—Appeal ment—Disability—Notice and Error. Compensation Appeal Board finding by A the Workmen’s disablement timely employer employee’s notice record, disability, supported a factual basis on the if Michigan even binding upon Supreme Court will be contrary result. perspective of facts would lead to its for Points Headnotes References Jur, Jur, Compensation 380. 58 Am Workmen’s Workmen’s 58 § [1] [2] Compensation § seq. Compensation Jur, et Am Workmen’s [3-7]