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05/18/43 KARR v. PERE MARQUETTE RAILWAY CO.

May 18, 1943

KARR
v.
PERE MARQUETTE RAILWAY CO.



SYLLABUS BY THE COURT

1. RAILROADS -- CROSSINGS -- NEGLIGENCE -- EVIDENCE -- AUTOMOBILES.

In action by administrator of estate of passenger of an automobile which crashed into side of tender of a locomotive about 2:30 a.m. while it was being backed across a lighted railroad crossing, evidence failed to sustain allegations of negligence that defendant was operating train at excessive speed, in backing train across the crossing without having a man on the rear of the tender to warn persons approaching the crossing of impending danger and in failing to cause the whistle to be blown or bell to be rung.

2. RAILROADS -- NEGLIGENCE -- CROSSINGS -- INSTRUCTIONS -- TRAIN CREWS -- PROXIMATE CAUSE.

In action by administrator of estate of passenger in automobile which crashed into side of tender of locomotive while it was being backed across lighted railroad crossing at 2:30 a.m. where evidence leaves no doubt train was not then engaged in switching operations, court's instruction that jury might consider company's rule requiring train crew to station a member at crossings unprotected by a watchman only if train were found to be engaged in a switching movement constituted reversible error iere there was nothing in record to indicate that a failure to observe such a rule would constitute negligence and plaintiff failed to establish any negligence on part of defendant proximately causing accident.

The opinion of the court was delivered by: Chandler

Appeal from Genesee; Elliott (Philip), J. Submitted April 8, 1943. (Docket No. 28, Calendar No. 42,204.) Decided May 18, 1943.

Case by Paul H. Karr, administrator of the estate of Eva Madzelan, deceased, against Pere Marquette Railway Company, a Michigan corporation, for damages for death of plaintiff's decedent. Verdict and judgment for ...


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