247 F. 693 | E.D. Mich. | 1917
This is an action of trespass on the case, brought by the plaintiff, a resident of Massachusetts, as executrix of the estate of James Brien, deceased, to recover from the defendant, a Michigan corporation, damages for the negligent killing of plaintiff’s decedent by the defendant, through one of its motormen. The cause was submitted to' a jury, which returned a verdict for plaintiff, and the defendant has moved for a new trial, alleging error in the instructions of the court and urging that the verdict is against -the weight of the evidence.
The testimony showed that on the day of the accident in question, late in the afternoon, in June, plaintiff’s decedent, James Brien, and his brother, Christopher, drove in an automobile belonging to Christopher, but being driven by James, northward on Woodward avenue from Detroit to Poplar Park, a suburban community about 10 miles north,from the center of the city. About 6:30 o’clock, and while it was quite light, they arrived at Poplar Park avenue, a driveway running into Poplar Park westerly from, and at right angles to, Woodward avenue, which runs in a general northerly and southerly direction. The defendant operates fast interurban electric cars on a double track on Woodward avenue from Pontiac to Detroit, a distance of about 25 miles. These tracks are parallel with the public highway, and are 8 feet westerly of the west side of the cement paved portion
It was the claim of the defendant, supported by the testimony of the motorman and of the conductor in charge of the car in question, that this automobile was turned upon the crossing and across the track suddenly and when the car was about 300 or 400 feet distant; that the car did not stall and did not come to a stop before the accident; that neither of the two men left the automobile before it was struck; that the motorman and the conductor were in the front vestibule of the car, looking ahead at the time, and saw the automobile as it was driven upon the track; that the power was then shut off; that soon after the air was applied, the application being completed when the car was aboxit 150 or 200 feet from the crossing; that when the automobile was first seen it was impossible to stop the car in time to' avoid a collision, although as soon as it was seen that the automobile was in danger every possible effort was made to stop the car and avoid such collision. The evidence showed that this crossing was in daily use by traffic, and had been for a considerable period before this accident; that the automobile could have been seen at the 10-mile road, which was, as already
The questions as to the contributory negligence of the plaintiff and the, negligence of the defendant were submitted to the jury. The substance of the instructions of the court on these points is shown by the following extracts from the charge:
“I say to you, as a matter of law, that if the accident occurred in the manner that the defendant claims—if the automobile did not stall upon the track—there can he no recovery in this ease, and that would dispose of the case in favor of the defendant. * * * If he turned and drove upon that track, in front of that car, he would he negligent, and guilty of negligence which caused the accident, for failure to do several things that he ought to do.
“So, while I will give you more specific and definite charges later with reference to the law, the real necessities for charging you with reference to the law from this point on, are made necessary on the theory, and in case that you find, that the accident occurred in the manner that the plaintiff claims, and by the stalling of the automobile.
“In the event that the accident occurred by the stalling of the automobile, then, as a general proposition, this is the rule of law governing the situation: There is a duty resting upon parties that drive across street ear tracks, interurban street car tracks, at the usual crossings, and there are also duties resting upon the companies who operate the cars, the street cars. There is a duty resting upon the motorman, and by the ‘motorman’ I mean the street car company; and when I say ‘street car company’ in that regard I mean the motorman. Each has his rights. The street ear company has a right to operate its trains up and down its tracks, and the drivers of automobiles have a right to cross 'the tracks at those regular crossings. Each, however, at the same time has its duties to perform in so passing along the track or across the traéis. Now, it is the duty of the motorman in driving the street car—and it was the duty of the motorman in driving this car—to use reasonable care in keeping a lookout for people and vehicles ahead of him upon the track; and if he saw people in an automobile stalled upon the track ahead of him, .to use reasonable care to avoid striking them and injuring' them, provided he saw they were in danger, and were not going to be able to get out of his way. If he failed to perform that duty, and his failure to perform it was the proximate cause of the injury,, and his failure resulted in striking the automobile, then the operator of the car, and the company employing the operator of the car, were guilty of negligence.
“On the other hand, it was the duty of the driver of the automobile—the plaintiff’s decedent, in this case—to look and to use reasonable care and diligence for his own safety, to look, before turning across the street car track, to see if there was any street car approaching, and then, if he turned to drive across the track,' to use reasonable care and caution in driving across the track, and operating his car, to see that he did not become stalled upon the track, to use reasonable care and caution and to keep watch to see if a car was approaching, and, if he got stalled upon the track, to use reasonable care and caution to get out of the way of the car and off the track before he himself was injured. * * *
“I use the word ‘negligence,’ meaning that if the defendant’s motorman, in operating the train, two freight cars, at the time in question, kept such a lookout for. passengers, for people or vehicles on the track ahead of him, at the time and place in question, as a reasonably prudent ^motorman would, under the surrounding circumstances—or, rather if he failed to do that, and his failure' to do that was the proximate cause of the injury in this case, then the defendant was guilty of negligence, or, if he saw the automobile upon the track, and failed to use reasonable care, such care as an ordinarily careful motorman, under similar circumstances, would have used to stop iris car and prevent the collision, and such failure was the proximate cause of the accident, then the defendant would be guilty of negligence. * * *
“I want to relieve the case of some other unnecessary issues. There can*697 be no recovery except upon the issue I have already pointed out to you, and no recovery by the plaintiff upon any other issue, or upon any other theory. If at all, it must be on the theory that the automobile was stalled, and that the motorman either saw it, or, with reasonable care, would have seen it, in sufficient time, so that, wi1h the exercise of reasonable care, he could have stopped the street car and prevented the accident. I say, this lawsuit is entirely upon that theory; and there can bo no recovery—if there is a recovery —upon any other theory. There can be no recovery upon any theory of negligence on the part of the defendant company, or any of its employés. prior to the time when the automobile—if you find it was stalled upon the southbound track—could have been seen by the motorman approaching from the north. There can he no recovery for anything that occurred before that time, because, as you will see under the .charge in this case, as I have outlined it to you, if there was any negligence for which the plaintiff can recover, it must occur after that time. * * *
“If the jury believes, from the evidence, that the plaintiff’s decedent, as a reasonable man, acting prudently under all the circumstances, should have noted the approach of that car, and its closeness to him, in time to have permitted him to leave the car and get to a place of safety, then the jury would be justified in finding him guilty of such negligence as would defeat plaintiff’s right to recover.
“As a matter of law, the plaintiff’s decedent’s first duty was to himself in the protection of his life and limb, and he was not justified in remaining unreasonably in a place of peril for the purpose of conserving or protecting property, and his desire to conserve property would not excuse him from the exercise of his senses of sight or hearing for the purpose of apprising himself of the rapid approach of the car and its proximity to the automobile in time to enable him, if necessary, to leave the car and go to a place of safety.”
It is urged by defendant that on the present record plaintiff’s decedent was guilty of contributory negligence as a matter of law, and also that the court erred in instructing the jury that, if the motorman might by tlie exercise of reasonable care have seen the automobile in time to have avoided the accident, his failure to see such automobile within such time constituted negligence; it being the claim of defendant that the motorman would be guilty in this respect only if, after actually seeing the automobile, lie failed to exercise ordinary care in stopping his car in time to avoid a collision.
“What the plaintiff did after he got upon the track is not a matter of controlling importance. In such a case as that in which the plaintiff then found himself suddenly put in peril, he is excusable if he made an unwise decision as to what he should do. The rule on this phase of the matter is correctly laid down in Shearman & Kedfield (6th Ed.) vol. 1, par. 85a, where it is said: ‘If one is placed by the negligence of another in such a position that he is compelled to choose instantly, in the face of grave and apparent peril, between two hazards, and he makes such a choice as a person of ordinary prudence placed in such a position might make, the fact that, if he had chosen the other hazard, he would have escaped injury, is of no importance. Even if, in bewilderment, he .runs directly into the very danger which he fears, he is not at fault. The confusion of mind caused by such negligence is part of the injury inflicted by the negligent person, and he must bear its consequences.’ ”
As was said by the Circuit Court of Appeals for this circuit in Robinson v. Louisville Ry. Co., supra:
“It was the duty of the motorman, in exercising the care incumbent on him, to ascertain whether the track ahead was clear, and to have Ills car under such control as to admit of its being stopped after he saw obstructions ahead of it. La Pontney v. Cartage Co., 116 Mich. 514, 74 N. W. 712, and cases ihere cited. It follows that if he could, by the exercise of due care, have seen the wagon in which the plaintiff was riding as far as other witnesses testified to have seen it, and if he could, after he should, by the exercise of due cure, hare seen it, gotten his car under such control as to have prevented the collision, if was Ms duty to have done so, and those questions should have been left to the determination of the jury.”
In the language of Philadelphia & Reading R. R. Co. v. Klutt, supra:
“Not to have discovered what should have been under all the circumstances discovered was a part of defendant’s negligence, subsequent to that of the plaintiff. The so-called doctrine of Davies v. Mann fio Mees. & W. 5461 supra, has been the subject of much refinement by courts and text-writers. We think, however, that Judge Acheson, speaking for this court in the former case, has laid down the true principle applicable to this case, as follows: ‘It is a settled principle of law that, although a plaintiff, who sues for an injury inflicted by the defendant, might, by the observance of proper care, have avoided exposing himself to the injury, yet this will not prevent him recovering damages from the defendant, if the latter discovered, or .by the exercise of ordinary care might have discovered, the exposed situation of the plaintiff in time, by the exercise of ordinary care and diligence, to have averted the effect of the plaintiff’s negligence and avoided the injury which happened.’ ”
In Dickson v. Chattanooga Ry. & Light Co., supra, the Court of Appeals for this circuit said:
“It is well settled that one who is injured by a railroad train at a highway crossing, or by a street car in a street, may recover for such injury, notwithstanding Ms own initial or preceding contributory negligence in exposing himself to danger, provided lie is using the street or highway at the time for a proper and legitimare purpose and Ms negligence has terminated, and provided, further, that the driver of the engine or street car, by the exercise of reasonable care and diligence, could have discovered his peril in time to avoid and prevent the accident.”
“We have carefully examined the authorities cited and relied upon hy the defendant, and are of the opinion that the question whether the defendant s agent, the motorman, should have discovered from the actions and situation of plaintiff his peril, and should have, but did not, take ordinary precaution to avert that peril, was one for the determination of the jury, under all the circumstances disclosed by the record in this case. Richter v. Harper, 95 Mich. 221, 54 N. W. 768; La Pontney v. Shedden Cartage Co., 116 Mich. 514, 74 N. W. 712; La Barge v. Pere Marquette R. Co., 134 Mich. 139, 95 N. W. 1073.”
The principle applicable was thus stated in the somewhat similar case of McKinney v. Port Townsend & P. S. Ry. Co., supra:
“If the engineer or fireman had actually seen the automobile at a standstill on the track in time to stop, they could not have failed to appreciate the danger and necessity for stopping the train. Whether they did see the automobile come to a standstill in time to stop, or by the exercise of a reasonably careful lookout could have seen it in time to stop, were plainly, under the evidence in this case, questions for the jury.”
In view of the testimony already referred to, it seems clear that the questions whether the motorman would, if keeping a proper lookout, have discovered the dangerous position of plaintiff’s decedent in time to have avoided injuring him, and. whether after such discovery he could, by the exercise of reasonable care, have stopped his car before the collision, were properly submitted to the jury.
I am satisfied that no error was committed on the trial, or in the charge to the jury, and that the verdict is not contrary to the weight of the evidence, and the contentions of defendant must therefore be overruled, and the motion for a new trial denied.