Train conductor had duty to avoid collision with teen on tracks

A train conductor has a duty to make a conscious effort to stop the train if a person is on the railroad tracks and is in danger, the Michigan Supreme Court has held, affirming a published decision from the appeals court.

Chief Justice Elizabeth T. Clement clarified the duty on the railroad’s part, specifically regarding when a presumption that a person will leave the tracks gives way to a duty on the train operator’s part 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,” she wrote. “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.”

Justices Brian K. Zahra, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch and Kyra H. Bolden joined the chief justice in Marion v. Grand Trunk W. R.R. Co. (MiLW 06-108069, 24 pages).

In a partial concurrence, Justice David F. Viviano said he believed “the relevant fact questions in this case are better stated as (1) at what point it became apparent to defendants that Jacob Marion would not get off the tracks, and (2) whether this occurred when there was still time to avoid the collision.”

Background

Jacob Marion regularly walked on or near the train tracks between his home and his school. The 14-year-old had his earbuds in and was listening to music.

Steven Golembeski, the train’s conductor, and Jesse Wilson, the engineer, saw Jacob walking in the middle of the tracks with his back to the train. The train was roughly three-quarters of a mile to one mile away and traveling about 29 mph.

Wilson blew the train’s horn as it approached the crossing at Oak Street; the train was 18-19 seconds away from Jacob.

According to the opinion, Golembeski said, “The kid doesn’t look like he’s going to move.” Wilson blew the horn in emergency mode; he did not apply the emergency brake.

Jacob still had not responded to the train’s horn. Wilson applied the emergency brake approximately 1 second before the train struck Jacob. It took the train almost 720 feet to stop after the emergency brake was applied. Jacob suffered severe injuries; his phone and earbuds, found near the accident site, were still playing music.

Prior proceedings

Monica Marion, as personal representative of Jacob’s estate after his death, brought a negligence claim against the conductor and engineer, and Grand Trunk Western Railroad Company in Wayne County Circuit Court.

The trial court granted summary disposition for the train company underMCR 2.116(C)(10) and denied a motion for reconsideration.

The Court of Appeals reversed in a published decision .

“The circuit court’s opinion rested on cases decided by the Michigan Supreme Court between 1899 and 1933,” Judge Elizabeth L. Gleicher pointed out. “The court incorrectly interpreted those cases, ignored more recent and relevant caselaw, and overlooked fundamental components of the concept of duty.”

Judge Mark J. Cavanagh joined Gleicher’s opinion. Judge Anica Letica penned a brief concurrence, saying the lower court “misconstrued critical facts and common-law legal principles before it concluded that there were no genuine issues of material fact.”

The defendants’ application for leave to appeal was granted. The justices ordered arguments to address whether: “(1) the defendants were entitled to presume that the plaintiff would leave the tracks before being struck by the train; (2) the defendants possessed a duty to slow or stop the train to avoid a possible collision with the plaintiff; and (3) if both of the preceding questions are answered in the affirmative, at what point does the entitlement to a presumption that a person will leave the tracks give way to the duty to act to avoid a possible collision, if at all.”

Duty

“Whether summary disposition is warranted in this case turns on the scope of defendants’ duty,” Clement noted.

Here, even though Jacob was a trespasser on the defendants’ railroad tracks does not mean that they owed him no duty. In fact, landowners who should know of trespassers must use reasonable care for the trespassers’ safety when conducting dangerous activities.

And while train operators have a “general duty to run the train with reasonable care and watchfulness,” a train engineer who sees a person on the tracks can assume the person will move until the engineer sees otherwise.

“Put simply, if a train operator sees a person on the track, and there is no reason to believe that the person would not heed the danger of the coming train, the train operator can presume the person will move,” Clement explained. “In that circumstance, the train operator has no duty to take steps to avoid a collision. Several cases have iterated the principle that there is no duty to act to avoid a collision simply because someone is approaching or on the track.”

That presumption gives way to a duty to act to avoid a collision when it becomes clear that the person either will not or cannot move off the tracks.

An 1886 case Bouwmeester v. Grand Rapids & I R Co held that when a train engineer sees that a person on the tracks fails to recognize warnings and the danger he is in, “it is the duty of the engineer, and humanity requires, that he should slow down his train; and, if necessary to preserve life or limb, come to a full stop.”

Clement noted that this rule has been consistently applied in recent cases and applies to children and adults.

“Applying that rule to the instant case, we agree with the Court of Appeals that summary disposition was not warranted here,” Clement said, adding that genuine issues of material fact remain.

“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,” she wrote.

Fact questions also remain regarding the defendants’ ability to stop the train if they had braked as soon as duty required.

“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,” Clement wrote. “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.”

As such, “given all the above genuine questions of material fact, we do not believe defendants are entitled to summary disposition at this time,” the justice said, affirming the appellate court’s ruling in favor of the plaintiff.

The matter returns to Wayne County for further proceedings.

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