Braudy v. Detroit, Grand Haven & Milwaukee Railway Co.

107 Mich. 100 | Mich. | 1895

Long, J.

Plaintiff’s intestate was killed by a train •upon defendant’s road at its crossing at Grand avenue, in tbe city of Grand Rapids. This action is brought to recover damages upon tbe ground tbat defendant was negligent in not having a flagman or gateman at tbe ■crossing, and tbat it was running its train at a high rate ■of speed without sounding its bell or whistle.

It appears tbat tbe deceased, a man about 48 years •of age, about 5:30 p. m. of January 7, 1895, was walking north on tbe east side of Grand avenue. As be approached the' railroad crossing, bis view was obstructed by a high fence about a wood yard extending along tbe street, until be came to tbe defendant’s right of way, about 55 feet in width before reaching tbe tracks- of defendant’s road. A side track extended along tbe main line upon the side from which decedent was approaching. Upon tbis side track stood two cars, about 50 feet east of Grand avenue; tbe first one a box car about 12 feet high, and tbe other a coal car about 6 feet high.

Tbe plaintiff’s theory was tbat b-y reason of tbis obstruction to decedent’s view be could not see tbe approach of tbe train; tbat be was lured into this place •of danger by tbe failure to ring tbe bell or blow tbe whistle, and tbat as be reached tbe track be probably, ■on the impulse of tbe moment, and under tbe sudden danger in which be was placed, made an effort to cross tbe track, and, by reason of tbe great rate of speed at which the train was approaching, was -struck and killed; and tbat tbe running -of tbe train at a rate of speed from 35 to 40 miles per hour was willful and reckless.

Tbe only witness to the- accident was tbe fireman •on tbe engine, who testified:

“As we approached Grand avenue within a short distance, I saw a man walking across tbe highway leisurely, -seemingly unmindful of what be was doing. When I first saw him be was just stepping inside tbe rail; bad one foot on tbe outside, and making a step forward to -step inside tbe rail, between both rails.”

The track of the defendant’s roa.d at this point was. comparatively straight as it extended eastward, and an appi’oaching train from the east could be seen for a distance of 80 rods as decedent arrived at defendant’s right of way. There was a headlight upon the engine, and the only obstruction to his view was the two cars standing upon this side track. As he passed beyond these cars, it is admitted, there was a space of six feet where his-view was wholty unobstructed by the track, before he reached the rail of the main track; and it is apparent that, had he looked in that direction, he would have seen the approaching train. If he looked and saw the train, he was negligent in attempting to cross in front of it; if he did not look, then he was in fault in going into this place of danger without taking that precaution. The contention that he was lured into the place of danger by the negligence of the company, and would not therefore be in fault if he did not take the necessary precaution to save himself from injury, has no force. It is true that cases have arisen where persons, in driving their teams towards and upon crossings, have been put in a place of danger by the negligence of railroad companies, and that such persons have been permitted to recover upon the theory that they could not be said to be negligent in not taking the least hazard; but that rule is not applicable to this case. Here the decedent was on foot, and was in safety at the point where he passed the two. cars upon the side track, and, as has been stated, had he looked, must have seen the approaching train. The case falls so clearly within the rule of this court in Gardner v. .Railroad Go., 97 Mich. 240, that further discussion is unnecessary. ,

The court below directed verdict and judgment in favor of the defendant, and that judgment must be affirmed.

The other Justices concurred.