
    BAUGHMAN v CONSOLIDATED RAIL CORPORATION
    Docket No. 113816.
    Submitted February 14, 1990, at Lansing.
    Decided April 25, 1990.
    Santa Ramirez was killed when the automobile in which she was a passenger was struck by a train at a railroad crossing maintained and controlled by Consolidated Rail Corporation. Michael J. Baughman, as personal representative of the estate of Santa Ramirez, brought a negligence action for damages in Jackson Circuit Court against Consolidated Rail, basing his claims upon the failure of defendant to maintain adequate warning devices at the crossing. Defendant brought a third-party action against Jose V. Ramirez, driver of the automobile at the time of the accident. Plaintiff proposed to present at trial files compiled by the Michigan Department of Transportation relating to the crossing in question in order to establish the need for crossing gates at that crossing. Defendant moved to exclude those files from evidence. The trial court, Russell E. Noble, J., granted defendant’s motion. Prior to trial, the parties stipulated to an order of dismissal because plaintiff, without the files of the Department of Transportation, would be unable to prove his case. Plaintiff appealed.
    The Court of Appeals held:
    
    1. Since by statute the failure to erect or maintain a warning device shall not be the basis for a negligence action against a railroad unless such device was ordered by a public authority, and since no such order was made here prior to the accident, the railroad had no duty to install the crossing gates which plaintiff alleged should have been installed. Since the sole purpose of the proposed evidence was to support the claim which is statutorily barred, the trial court properly refused to permit the use of those files.
    2. While the trial court should have held that the result of the blood alcohol testing of Jose Ramirez was inadmissible at trial, the error in that ruling has no effect on plaintiff’s inability to prove his claim against defendant.
    Affirmed.
    References
    Am Jur 2d, Railroads §§ 508, 509.
    See the Index to Annotations under Railroads; Warnings.
    
      Railroads — Railroad Crossings — Signs and Warning Devices — Negligence — Actions.
    The failure to erect, replace or maintain a stop or yield sign or other railroad warning device, by statute, may not form the basis for an action for negligence against a railroad unless such a device or sign was ordered by a public authority (MCL 257.668[2]; MSA 9.2368[2]).
    
      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.  