497 N.W.2d 571 | Mich. Ct. App. | 1993
TURNER
v.
CSX TRANSPORTATION, INC
URNER
v.
DEPARTMENT OF TRANSPORTATION
Michigan Court of Appeals.
Stephen A. Seman, for Robert A. Turner.
Smith & Brooker, P.C. (by A.T. Lippert, Jr., and Gary R. Campbell), for CSX Transportation, Inc.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Brenda E. Turner, Vincent J. Leone, and Patrick J. O'Brien, Assistant Attorneys General, for Department of Transportation.
Before: SAWYER, P.J., and HOOD and JANSEN, JJ.
PER CURIAM.
Plaintiff, Robert A. Turner, as personal representative of the estate of James R. Turner, deceased, appeals from orders of the circuit court and the Court of Claims granting summary disposition in favor of defendants, CSX Transportation, Inc., and the Department of Transportation (MDOT), on plaintiff's claims arising from an automobile-train accident. We affirm.
Plaintiff's decedent was killed when he drove his automobile into the side of a CSX locomotive engine. Witnesses of the accident stated that plaintiff's decedent attempted to beat the train across the railroad crossing. Witnesses also stated that the train whistle could be heard before the accident and that the railroad warning lights were engaged and flashing.
Plaintiff filed an action in the Saginaw Circuit Court against CSX, alleging that CSX was negligent in failing to properly warn motorists approaching the crossing. Specifically, plaintiff alleged that CSX failed to install necessary additional warning *256 lights and failed to petition the MDOT for authority to install those additional warning lights. Plaintiff also filed an action in the Court of Claims against the MDOT, alleging that the MDOT was negligent in the maintenance and regulation of the crossing, particularly in failing to require the erection of additional and more advanced warning devices. Judge Leopold P. Borrello, presiding in both courts, granted summary disposition in favor of defendants.
Plaintiff first claims error in the granting of summary disposition in favor of CSX with regard to the theory that CSX was negligent in failing to install all the necessary warning devices. We disagree.
MCL 257.668(2); MSA 9.2368(2) provides in pertinent part as follows:
The erection of or failure to erect, replace, or maintain a stop or yield sign or other railroad warning device, unless such devices or signs were ordered by public authority, shall not be a basis for an action of negligence against the state transportation department, county road commissions, the railroads, or local authorities.
In the case at bar, there was no order by a public authority directing that additional warning devices or signals be installed. Thus, CSX cannot, under the clear and unambiguous language of the statute, be held liable for the failure to erect additional warning devices or signals. Baughman v Consolidated Rail Corp, 185 Mich. App. 78, 80; 460 NW2d 895 (1990).
Plaintiff also argues that CSX may be liable because it had a common-law duty to petition the proper government entity for the authority to install additional warning devices. The case cited by plaintiff, Harrison v Grand Trunk W R Co, 162 Mich. App. 464, 468; 413 NW2d 429 (1987), does stand for that proposition. However, we are persuaded *257 that Harrison was incorrectly decided. In our view, in enacting the statute, the Legislature intended that no liability was to be premised upon the absence of warning devices at a railroad crossing absent an order by the proper authority to install devices and a failure to follow that order. Under MCL 257.668; MSA 9.2368, as well as MCL 257.615(a); MSA 9.2315(a), the duty to determine the appropriate warning devices to be installed at railroad crossings lies with the appropriate governmental entity with jurisdiction over the roadway, not with the railroad. With these points in mind, we conclude that a railroad has no duty to petition the appropriate governmental entity for the installation of warning devices at a railroad crossing. See Kesslering v Chesapeake & O R Co, 437 F Supp 267, 269 (ED Mich, 1977).
Next, plaintiff claims error in the granting of summary disposition in favor of the MDOT. However, MCL 257.668(2); MSA 9.2368(2) also provides that the Department of Transportation cannot be held liable for the failure to install a warning device at a railroad crossing unless installation of the device had been ordered by the proper public authority. As noted above, no such order existed in the case at bar. Accordingly, the MDOT cannot be held liable. Edington v Grand Trunk W R Co, 165 Mich. App. 163; 418 NW2d 415 (1987).[1]
On the basis of the reasons we stated, we conclude that defendants were entitled to summary disposition.
Affirmed. Defendants may tax costs.
NOTES
[1] We also note that in Edington the plaintiffs' complaint also included allegations of negligence against the railroads and the road commission for failing to request the installation of warning devices. While the discussion in Edington focused on the failure to erect warning devices, we do find it instructive that, despite the fact that the plaintiffs also included an allegation of the failure to request the installation of a warning device, this Court nevertheless concluded that the defendant road commission was entitled to summary disposition.