119 Mich. 583 | Mich. | 1899
Plaintiff sued the defendant to recover damages for injuries received by her upon a street railroad
First. That the question of the negligence of the plaintiff was for the jury.
Second. That, even though the negligence of plaintiff contributed to her injury, she was entitled to recover, because of the gross negligence of defendant.
The record shows that, at the time of the injury, 12 tracks of the railroad company crossed Wadsworth street. This crossing is 13G feet east of Fourteenth street. Approaching the railroad crossing from Fourteenth street, the first track is the main track for outbound trains. The second track is the main track for inbound trains. The other tracks are used for freight purposes. There was a sidewalk on the north side of Wadsworth street, from Fourteenth street, going east, which extended to the first railroad track. The planking then extended south between the rails of the first track until it reached the planking of the roadway in the middle of the street. This roadway was planked with planking 32 feet wide. The planking commenced west of the first track, and extended east until all the tracks were passed. There was a gate across the highway, just west of the first track, but it did not extend across the sidewalk.
According to the case made by the plaintiff, she was a woman in good health, about 52 years old, who for about six weeks had lived three blocks east of the railroad tracks, and had passed over them several times prior to the day of the injury, which occurred upon the 31st day of March. About half past 5 or 6 o’clock, she left her house, and passed over these tracks, going to the house of Mrs. Winston. It was then daylight. The hearing of plaintiff was good, but she was somewhat nearsighted. Prior to living where she did at the time of the accident, plaintiff lived for a long time two doors away from the Seventh-street crossing, where there were more tracks than at Wads-
It is claimed by counsel that plaintiff was deceived by the evenness of the planks between the rails, and supposed she was standing in a place of safety, when she was in fact standing on the track; and they insist that it should have been left to the jury to say whether what was done by plaintiff was consistent with the requirements of ordinary care, or whether she was guilty of contributory negligence,— citing Regan v. Railway Co., 85 Wis. 43; West v. Railroad Co., 32 N. J. Law, 91; Chicago, etc., R. Co. v. Hansen, 166 Ill. 623; Greany v. Railroad Co., 101 N. Y. 419; Wilson v. Railroad Co., 132 Pa. St. 27. These cases are either easily distinguished from the case at bar, or are
Counsel also cite Cooper v. Railway Co., 66 Mich. 261 , (11 Am. St. Rep. 482); McDuffie v. Railway Co., 98 Mich. 356; Lonis v. Railway Co., 111 Mich. 458; Tobias v. Railroad Co., 103 Mich. 330; Willet v. Railroad Co., 114 Mich. 411. These cases are none of them in point. Before entering upon the track, the persons injured had done what the law required, and when attempting to cross were at once injured. In the case 'at bar, the plaintiff knew when she entered through the gate that guarded the railroad tracks; she knew she was in a place of danger, where trains were liable to pass and repass; she knew of the existence of the tracks in the vicinity of where she stood, and that the railroad crossing was a place of danger; and, without making certain that she was standing in a place of safety, she stood inside of the gate, and, ’according to the testimony of her witness, remained upon one of the main tracks of the crossing for 10 or 15 minutes, until she was struck and injured. According to all the testimony, she was so near this track as to be struck by the passing train. If this did not constitute negligence, it would be difficult to find a case of negligence. Brady v. Railroad Co., 81 Mich. 616; Gardner v. Railroad Co., 97 Mich. 240; Houghton v. Railway Co., 99 Mich. 308; McGee v. Railway Co., 102 Mich. 107 (26 L. R. A. 300, 47 Am. St. Rep. 507); Braudy v. Railway Co., 107 Mich. 100.
It is the claim of plaintiff that as the fireman and engineer (according to their testimony brought out upon the cross-examination), in the exercise of ordinaiy care, should have seen the plaintiff when they were 300 feet south of the crossing, and did not see her, but ran over her without even knowing they had struck her, they were guilty of gross negligence; that as there was testimony that the bell was not rung and the whistle blown, and that the train was, running 50 miles an hour, the jury should have been allowed to pass upon the question of gross negligence, — citing Battishill v. Humphreys, 64 Mich. 514;
‘ ‘ It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting t'he life or property of another. It also implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them.”
See, also, Richter v. Harper, 95 Mich. 221.
Even if the engineer had seen the plaintiff (the undisputed testimony is that he did not see her), there is nothing in the record which shows that he had any reason to suppose that she would not hear the sounding of the bell or blowing of the whistle, which he says were rung and blown, and would not step aside in time to avoid
Judgment is affirmed.