Baughman v. Consolidated Rail Corp. , 185 Mich. App. 78 ( 1990 )

185 Mich. App. 78 (1990) 460 N.W.2d 895

BAUGHMAN
v.
CONSOLIDATED RAIL CORPORATION

Docket No. 113816.

Michigan Court of Appeals.

Decided April 25, 1990.

Best, Schmucker, Heyns & Klaeren, P.C. (by Michael J. Klaeren and Chad C. Schmucker), for plaintiff.

Driggers, Schultz, Herbst & Paterson (by Gene S. Davis and Thomas A. Malone), for defendant.

Before: MICHAEL J. KELLY, P.J., and WAHLS and SAWYER, JJ.

PER CURIAM.

Plaintiff appeals from evidentiary rulings by the circuit court excluding the contents of files compiled by the Michigan Department of Transportation.

Plaintiff's decedent was killed when the car in which she was a passenger was struck by a train coming through a railway crossing maintained and controlled by defendant, Consolidated Rail Corporation. Plaintiff sued defendant for negligence, basing his claims upon the company's failure to maintain adequate warning devices or gates at the crossing to prevent accidents. In support of these claims, plaintiff attempted to offer into evidence Department of Transportation files regarding the crossing in order to establish a need for gates. Defendant moved to exclude the files from evidence, which the trial court granted, stating:

Well my impression is that the law and apparently administrative law has pretty much taken over this area with respect to what is reasonable or unreasonable or should be done with respect to railroad crossings. And if the government and the railroad complies with those recommendations or the orders with respect to that that there is very little room for common law negligence. So unless there is something else that comes out during the course of the trial about those reports and so on those would not be admitted.

Prior to trial, plaintiff stipulated to an order of dismissal on the ground that, given the court's evidentiary rulings, plaintiff had no viable case against defendant Conrail. The court entered an order dismissing plaintiff's claims with prejudice.

On appeal, plaintiff argues that the circuit court erred in ruling that the contents of the files were not admissible. We disagree.

Plaintiff attempted to present the contents of the files to prove that defendants' railroad crossing required warning signals and gates and that defendant was negligent in failing to install these devices. MCL 257.668(2); MSA 9.2368(2) provides in relevant part:

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.

The terms of this statute are clear and unambiguous and preclude liability for failure to install warning devices unless so ordered by a public authority. Edington v Grand Trunk W R Co, 165 Mich App 163, 168-169; 418 NW2d 415 (1987), lv den 430 Mich 900 (1988). There was no order to install gates at the crossing in question prior to the accident, thus defendant cannot be held liable for negligence in failing to install gates or other warning devices. Plaintiff may not use the Department of Transportation files to prove a theory of liability which is barred by the statute. The court properly excluded the files from evidence.

Plaintiff also argues that the court erred in holding that evidence of the blood alcohol content of the car's driver, third-party defendant Jose Ramirez, was admissible at trial. We agree. The test results in question were obtained pursuant to the implied consent statute and, therefore, cannot be used in civil litigation. McNitt v Citco Drilling Co, 397 Mich 384, 388; 245 NW2d 18 (1976). Nevertheless, this error does not require reversal as it has no effect on plaintiff's inability to prove his claim against defendant Consolidated Rail Corporation.

Affirmed.