173 Mich. 181 | Mich. | 1912
This is an action on the case brought by plaintiff against defendant to recover damages for personal injuries to plaintiff, claimed to have been caused by the negligence of defendant’s servants. A verdict was rendered in the case in favor of plaintiff. From a judgment entered upon such verdict defendant has brought the case before this court upon a writ of error, asking a reversal on account of errors, which are assigned. As far as may be necessary in the consideration of this ease to state any facts, the court will accept the statement as made in the brief of the appellant, for the reason that the appellee has ignored Rule No. 40 (68 N. W. viii) of this court, and not pointed out in a single instance wherein if is claimed the appellant’s statement is incorrect, and has made a new statement of great length.
The injury to the plaintiff occurred in the village of Harbor Springs, Emmet county, where defendant owns and operates a narrow-gauge logging road, which crosses the tracks of the Grand Rapids & Indiana and Bay street at right angles. On defendant’s main track two switches are placed to connect with side tracks, one north of the Grand Rapids & Indiana tracks and one south of those tracks. These switches are operated from a small target house. The north switch is about 120 feet north of this operating station.
On the day of the injury, plaintiff approached defendant’s main tracks from the east, and saw an engine pushing a car of coal ahead of it approaching from the south, the engine heading north. Plaintiff stepped on the east side of the defendant’s track, and waited for this engine
Plaintiff, continuing on the path as described, came to and passed the point where this switch track approaches Bay street, and proceeded along said path to the place where she was injured, which she designates as exactly opposite the south switch. As she was coming towards the point where the switch track parallels Bay street, some piles of railroad ties obstructed her view of this switch track higher up. She could see some distance up the track where it straightens out, and says that at that point she looked and saw nothing approaching. She continued along her way to the place where the path comes to the side of the switch track on Bay street, and proceeded along such path without any further observation. The engineer on the approaching engine saw plaintiff when she came into view at the end of the pile of railroad ties. The brakeman on the engine also saw her at the same time. The engineer was standing up in his cab watching her from that time until the accident, with nothing to obstruct his view, with one hand on the air brake lever, and ringing the bell continuously with the other hand; the air pump making a noise which could be heard 35 or 40 rods. She walked the whole distance with her back to the engine approaching her from behind along, or near, the path on the side of the track toward Bay street, which is open and level for the whole distance it is paralleled by the track, without turning or looking back. The record shows that she did not walk in the path all of the time, but zigzagged as she went along toward the street and toward the railroad track. The engineer had the engine under control, and at one time applied the brakes because he thought plaintiff was getting too near the track. She proceeded in this manner for a distance of about 10'0 feet from the place where, as stated, she looked up the track as she approached it, when, as is claimed by the men on the engine, she suddenly stepped between the rails, the engine being then ten feet from her,
The material errors assigned and relied upon by defendant are that the court erred in refusing to direct a verdict for the defendant, in allowing the amendments of the declaration whereby the charge against defendant was changed from one of “ ordinary negligence” to “gross negligence,” upon the charge of the court upon the question of negligence and the measure of damages, the refusal to charge upon these questions as requested by defendant, and the refusal of the court to grant a new trial. The amendments rsferred to were allowed after all the
The undisputed facts in the case show that the engineer was operating this small geared engine with great care, from the time the plaintiff approached the railroad down to the time when the injury occurred; that the engine was practically moved no faster than plaintiff walked; that she was a normal person, in possession of all her senses, traveling over a road which she was well acquainted with and walking in this path, which ran far enough from the rails for perfect safety; that the bell on the engine was ringing continuously, the brakes were always under control, and the air pump working with a great noise. The engineer was justified in acting upon the assumption that plaintiff would not put herself in a place of danger, and had no reason to believe that plaintiff would walk so near to the rails as to be injured, much less step over the rail. The fact that the engine was stopped within ten feet after she was discovered to be in a place of danger is evidence of itself that it was under control. Both of the engineer’s hands were engaged in doing those things which were necessary to warn plaintiff of the approach of the engine, and at the same time keep absolute control of the machine. Complaint is made that he did not blow the whistle. Not being provided with more than the ordinary number of hands, which were occupied as we have already stated, the blowing of the whistle was impossible.
“The term ‘gross negligence’ has been used in eases decided by this court, and has a definite meaning when referred to as authorizing a recovery for negligent injury, notwithstanding the contributory negligence of the plaintiff. It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exercise of any effort to avoid them. Schindler v. Railway Co., 87 Mich. 400, 411 (49 N. W. 670); Denman v. Johnston, 85 Mich. 387, 396 (48 N. W. 565). In Labarge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073), the cases are reviewed and the doctrine of ‘gross negligence,’ as stated and defined in Richter v. Harper, 95 Mich. 221, 225 (54 N. W. 768), is approved.” Knickerbocker v. Railway Co., 167 Mich. 596, 602 (133 N. W. 504, 507).
A careful examination of all the testimony in the record satisfies us that it does not disclose any evidence of “ gross negligence” upon the part of defendant, and the court was therefore in error in its charge to the jury that there was evidence in the case, which, if believed by them, would warrant a verdict against defendant upon the ground of “gross negligence.”
The defendant insisted upon the trial that the evidence disclosed contributory negligence on the part of the plaintiff, and requested the court to instruct a verdict in its behalf for that reason, which request was refused. It will not be necessary to repeat what already appears from the statement of facts we have given, the conduct of this plaintiff, as she went along this path. The presence of the railroad track was of itself a warning of danger, and required the exercise on the part of plaintiff of all her senses neces
Other errors assigned, in view of our conclusion, do not require discussion. The judgment of the circuit court is reversed, and, it being admitted in the brief for plaintiff that the testimony offered at the trial could not have been and cannot now be otherwise or different, no new trial is granted.