*1 W. R. v. Grand v. GRAND TRUNK WESTERN RAILROAD CO. ORTYNSKI Appeal Verdict—Evidence, and Ereor—Motion for Directed 1. verdict, motion for reviewing In denial of defendant’s directed in true. plaintiff behhlf of must be taken as Crossings—Contributor Railroads—Multiple-Tracked 2. Grade yNegligence. contributory negligence determining In multiple-tracked crossings traversing grade motorists while railroads, depends each case its own circumstances of such as no rule law can be laid down for decision cases. Neg- Same—Spur Tracks—Trucks—Negligence—Contributory 3. Jury. ligence—Question for plaintiff passenger Driver of truck which was a was not appears of law where it as matter stopped passed line, train on main he had while upon signal moved from watchman 3 or 4 forward and crossed hour, sets of tracks at 10 miles an .continued at same and, speed space unguarded 50 or 75 over feet of crossing same, driver, plaintiff, passenger and another , right, warning, looked left saw received no whistle, heard no bell or vision to obstructed high factory trailer located about two feet from around fence yard emerged from which defendant’s Diesel after warning approach, questions dark without of defend- negligence, contributory negligence driver, ant’s proximate being jury cause under such circumstances. Appeal 4. Error—Consolidated Cases—Inconsistent Ver-

dicts. plaintiffs separate brought Where damages two actions for against company arising defendant railroad out of the same accident, eases were consolidated trial and rendered by awarding damages inconsistent verdicts ease in defendant but found no eause action on successfully

part of other com defendant plain herein of verdict its favor as to other who *2 has not from and issues adverse verdict raised herein properly were submitted to Wiest, JJ., dissenting. Chandler Wayne; Appeal Murphy B.), (George J. (Docket June 1943. 15, Submitted No. Calendar 47, 42,407.) No. Decided October 1943. Ortynski against Case Nick Grand Trunk Company injuries

Western Railroad for sustained riding in automobile which he collided judgment plaintiff. a train. Verdict and for De- appeals. fendant Affirmed.

Berger, Kayes, plaintiff. Manas on & for Spike H. V. and Forbes Henderson, B. for defend- ant. (dissenting). Separate J. actions were Wiest,

brought by Ortynski Walter Nawrocki and Nick against the Grand Trunk Western Railroad Com- pany damages personal injuries recover re- ceived in a collision between Ford truck, which they riding, were and a locomotive. The cases were purposes consolidated of trial. The returned, awarding Ortynski a verdict $5,000 and finding part no cause of action on the of Nawrocki.

The verdicts were inconsistent but Nawrocki, point, defendant, is the one to be heard on that any appeal by are not advised of w.e him. De- by appeal, prosecutes Ortyn-- fendant, review of the judgment, ski and the is whether, under the testimony in behalf of the court should have directed a verdict of R. Ortynski Grand point we part tMs law. On a matter of on Ms in its behalf of view the must light. most favorable of Novem- the afternoon o’clock, 5 and 6

Between boy employed 16-year-old 25, 1940, ber plaintiff Ortynski 1932Ford loaded drive a easterly Poland direction on coal, with a ton city Naw- Plaintiff Hamtramck. in the avenue- sitting beside the driver rocki was same seat next was on the light and a cab. It was dark side window of the falling. on, were snow was Crossing visibility Poland was limited. side servicing tracks or switch avenue are several easterly gear plant, and axle the Chevrolet angle *3 crossing 45 de- of about Poland avenue at crossing grees. and was this The driver lived near use made thereof. the tracks and familiar with easterly speed of 10 miles at a track He drove 5 8 of the track the and when within to feet hour coming was a Diesel locomotive driver discovered yard plant. He at- the the of Chevrolet out of tempted left but the locomo- the truck to the to turn pushed along it struck the cab tive injured. plaintiff was 15 feet and about occupants their the truck testified The three of approaching cut off was the locomotive view of high, between 10 12 feet trailers stock they hear did not see or locomotive; and the them yard out of the of the it came until the locomotive plant edge with no street, the of the about to sounding. headlight they The heard no on and bell unprotected crossing driver the truck and the of was was aware thereof. may testimony it be as a matter said, such

Under guilty of that the truck was the law, of contributory negligence under then, he was, 1 If negligence, imputed not doctrine have recovery.

Plaintiff’s driver testified railroad came long a to the street on curve along coming and the train came the street yard they plant coming of the were toward my “I other; each also: looked to but didn’t my anything obstructing see because the trailer was I view. was about 5 from the track when I to feet looked. There were no I on the trailer. imagine away was about to 12 feet from the trailer. The trailer two feet inside fence (upon and about 5 or 6 from the track” feet approaching). the locomotive was place The driver of the truck drove into a danger point prevent sensed where he could not possible happened. happened. an accident if the It traveling and locomotive were at each speed of 10 miles hour. contributory negli- do on not,

We gence consider the in behalf headlight of defendant .that the on and the auto- ringing. hauling matic bell A Diesel locomotive, freight cars, five loaded is not but, noiseless accord- ing roaring makes a Nawrocki, sound quite airplane. as loud as an judge thought

Plaintiff trial required Co., Mich. issue the to be submitted to *4 jury. any The did not state change d long-establishe jurisdic in the law this applied holdings previous tion but decisions to the setting repeatedly in that case. We have held that applied upon par the law must be each case its ticular facts and circumstances.

Plaintiff testified: “I was about seven feet from the track ** * (the locomotive). first noticed it R. Grand ‘‘ stop your you it take How far would Q. going hour? 10 miles dry, was but there if it was 15 feet, “A. About pavement The a little. slight we skidded snow, a so it.” snow on a little there was wasn’t wet negligence contributory think We by Rosencranz controlled case is instant in the gondola case 137. In that 244 Mich. Co., prevented intervening standing on cars backing locomotive of the track view moving. said: there We prevented track was “Plaintiff’s view south by fact but did he noted the cars, safety plaintiff stop. un- in a zone of not While safely could, stopping, whether to see able, without stopped, lis- proceed. looked, and have He should necessary, gotten auto- of his and, have tened if stop, and, not He did observation. and made mobile way clear, being whether the to see without able path the locomotive.” drove into the circum- plaintiff under such case, in that We held negligence a mat- contributory as stances, law. ter of court offered

Under the evidence requested, a verdict as directed, have should contributory ground of defendant on behalf negligence granted de- have least, at or, notwithstanding judgment motion for fendant’s verdict. judgment without new reversed, be should to defendant. costs trial, with J. J., Wiest, concurred Chandler, ques submit the It was error J. Boyles, C. In the tion of upon Mr. relied 244 Mich. Case, Rosencranz Justice controlling, occurred the accident Wiest *5 daytime fourth in the track of a four-track railroad drove onto the way, having crossed three of the tracks. He made observation entering did not track, the first any proper care and caution thereafter. maintain by Although vision was obstructed cars his on the third track, he no further observation made driving in either direction before onto the fourth track. far as So he did not discloses, again look or listen after he made his first observa tion. This the situation at bar. case agree duty I do not that it was the of the driver the truck the case at the circum- bar, under stop get stances shown the record, his or spur out and make observation, before arbitrary track. No rule of law can be laid down to depends decide cases of this sort. Each on its own understanding circumstances, and a clear of this requires complete plain- case a more statement of proofs. They tiff’s must be taken true. The accident occurred after dark. When approached stopped the railroad tracks, freight pass with other vehicles to allow a train to on the main line. There awas watchman at the crossing. freight passed, When train the watch- signaled go man the traffic to forward. The driver up, of this truck started crossed the main line and 3 spur or 4 sets of at 10 miles hour. Be- ...tracks tween the last set tracks thus crossed easternmost track, there was a distance or.75 feet. The truck traversed this distance at the same rate of 10 got miles an hour. Before the truck spur' within 5 question, to feet of the track in passengers driver and his two right, looked left and saw no or train, saw no received warning, heard no right, bell or whistle. To the their vision was obstructed a trailer that was property located the Chevrolet about two feet R. *6 Grand Trunk factory buildings from the fence. The on the highway located some distance from the were lit. crossing unguarded. The driver’s line of seeing approaching vision was obstructed the engine plant that yard; came out the of Chevrolet engine gave yard, warning the came out of the approach, ringing, its and had no no bell approach. no noise warn to of its The driver saw the was about to feet from the nearest rail, tried to avoid a swerved collision, engine. struck left, duty stop it the

Was of the driver his perhaps get loaded with a ton of coal, his proceeding spur truck, before to cross the track? (plaintiff passenger his driver, The herein), as well as attempting looked, listened, before to cross nothing challenge track. There was their engine. approaching only attention fur- The. precaution stop, although ther would have been to apparent doing except there was no reason so, the obstruction to vision. I think that mere ob- require vision struction to did not aas matter of law stop that the driver attempting cross the track at 10 miles hour. The jury question court instructed the that the whether (plaintiff passenger the driver herein) truck and his care ordinarily used the that caution prudent man would have used under the circum- jury stances was for to decide. do not concur holding with Mr. Justice that the Wiest negligence contributory as matter of law.

Quoting deciding from decisions aid in is little depend upon cases of this nature. Each must its own facts and circumstances. However, I believe purview this case comes within the of those recent contributory cases where this held court has that Michigan Reports. negligence question is a of fact where opinions reasonable differ as to whether the use care and did caution ordi narily prudent man would have used under like cir adhering cumstances. For recent decisions to that in motor view cases, vehicle-railroad accident Spenclay Railway Co., see v. 421; Mich. Rogers Co., v. Railroad 289 Mich. 397; Co., Railroad 383; 301 Mich. Jones Co., v. Railroad 303 Mich. 114; Fisher v. Co., 306 Mich. 95. It was not error to submit the issue contribu- tory negligence *7 of de- negligence, fendant’s and whether it was the proximate injury, cause properly was also only submitted to the As to the other urged for reversal, the defendant cannot success- fully complain because the found in its favor as to the other who has not an adverse verdict as to him.

Judgment affirmed, with costs. North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred with Boyles, C. J.