Negligence — Railroad

Where a 14-year-old was struck by a train, summary disposition should not have been entered, as there remain genuine issues of material fact as to whether defendants were negligent.

“This case presents tragic facts involving a train collision. Namely, the train operated by defendants struck Jacob Marion, a 14-year-old who was walking along the tracks and did not heed the sound of the horn. We write to clarify the duty on the part of the railroad, specifically regarding when a presumption that a person will leave the tracks gives way to a duty on the part of the train operators to avoid a collision. As our caselaw has long recognized, the presumption that a person will leave the tracks gives way to a duty to act to avoid a collision when it becomes apparent that the person will not or cannot get out of the way. Lake Shore & MS R Co v Miller , 25 Mich 274, 279-280 (1872), overruled in part on other grounds by Bricker v Green , 313 Mich 218 (1946). Because summary disposition of plaintiff’s negligence claim is not warranted at this time, we affirm the Court of Appeals’ reversal of the circuit court’s order granting summary disposition in favor of defendants.

“There remain genuine issues of material fact that preclude summary disposition at this point. A reasonable juror could conclude that defendants were negligent in sounding a second horn rather than applying the emergency brake when it first became apparent that Jacob would not move, i.e., after Jacob failed to heed the initial horn blast before the crossing.

“There also remains a question of fact regarding defendants’ ability to stop the train had they braked as soon as duty required. The first horn was sounded 18 to 19 seconds before the collision, but the train took approximately 30 seconds to stop. Whether it was possible to stop the train may bear on what actions defendants should have taken when the duty to take steps to avoid a collision was triggered. If reasonable minds were to conclude that duty required defendants to apply the brake after Jacob failed to heed the first horn, they might also be able to find that it was possible to stop the train. In sum, given all the above genuine questions of material fact, we do not believe defendants are entitled to summary disposition at this time.

“The longstanding rule continues even now: When a train operator sees a person on the tracks, there is a presumption that the person will move to a place of safety. But when it becomes apparent that the person will not or cannot get out of the way, that presumption is overcome, and the train operator has a duty to take steps to avoid a collision. Because there remain genuine issues of material fact as to whether defendants were negligent, we affirm the Court of Appeals’ ruling in favor of plaintiff and remand to the trial court for proceedings not inconsistent with this opinion.”

Marion v. Grand Trunk W. R.R. Co.; MiLW No. 06-108069, 24 pages; Michigan Supreme Court; Clement, C.J., joined by Zahra, J., Bernstein, J., Cavanagh, J., Welch, J., Bolden, J.; Viviano, J., concurring; on appeal from the Court of Appeals; Michael S. Cafferty for appellant; Mary C. O'Donnell for appellee.

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