202 Mich. 311 | Mich. | 1918
(after stating the facts). 1. The amended declaration, its language being fairly interpreted, alleges peril of plaintiff, discovered by defendant’s agents in time to avert injury by proper action on their part. It must be held to be sufficient.
“Assuming, which perhaps more nearly approximates the theory of the plaintiff’s amended declaration, that the motorman is to be held to have anticipated the plaintiff’s attempt to make the crossing ahead of his car regardless of the danger to herself involved therein; that she was not intending, as she should have intended, to stop- before reaching the track, although it was easily possible for her to do so instantly, and that the peril of her situation was to be deduced from this course of reasoning, then it only needs to be said, no matter what the negligence of the defendant, the plaintiff, by continuing in motion towards the track upon which the car was approaching at a terrific rate of speed, by not reassuring herself of the safety of that attempt just before entering the track or before she got so close thereto that it would be impossible for her to stop if necessary, by failing to stop and allowing the car to go by, as was her duty, was guilty of continuing and continuous acts of negligence which ultimately brought her directly into the*322 path of the car and to her Injury, in which case, call the negligence of the defendant what you will — ordinary, precedent, gross, subsequent or what not — the active negligence of the plaintiff operating in conjunction and concurrently therewith in any view of the law as announced in every jurisdiction, precludes the possibility of her recovery.”
It is further said, in argument:
“This is not the case of a person using the part of the street occupied by the tracks as a thoroughfare while proceeding on his way ahead of and in the same direction the car is going and being run down by a motorman. It is a case of an unexpected and admittedly imprudent attempt (at least in its initiation) to cross the street car track at right angles. Subtle refinement and clever hair splitting will not serve permanently to deter the courts from applying the familiar rules of law to such situations. If a case of subsequent negligence is made for the jury in the case at bar, then we have, willy nilly, frittered away the doctrine of contributory negligence in right angle street car crossing cases; since in every case where an attempt is made to cross ahead of a street car the question of whether there was a timely discovery of the situation will' turn upon whether a motorman could have stopped his car after the attempt was made, and it would follow that if he could, his negligence will authorize a recovery notwithstanding the contributory negligence of the plaintiff. With such a rule, there could no longer be any such thing as contributory negligence defeating a recovery in any case where the defendant’s negligence consists of failing to control the car.”
I think that counsel has precisely stated the theory of plaintiff, the effect of the testimony of plaintiff’s witnesses. The witness Donnelly and the regular and the student motorman, each professes to have become aware, before plaintiff’s car had actually gone upon the rail, that she would drive it there and that unless the street car was stopped, or its speed greatly les
The remainder of the quoted argument for appellant contains the reasoning of this court in the opinion delivered in the case of Fritz v. Railway Co., 105 Mich. 50, 54, 55. In that case the driver of a milk wagon directly ahead of a moving street car which he had not observed suddenly turned his horses to cross the track. It was “an attempt to cross the track, unexpected and sudden.” And it was said:
“If we assume that, under these circumstances, the plaintiff had by this act placed himself in a position where his negligence might have been discovered and the car brought under control, it will result that, in every case where an attempt to cross ahead of a street car is made, the question of whether there was a timely discovery of the situation will turn upon whether the motorman could have stopped his car after the attempt was made, and it would follow that, if he could, his negligence will authorize a recovery, notwithstanding the contributory negligence of plaintiff.”
"It may be conceded that, where one wilfully injures another, the doctrine of contributory negligence is not involved, because the injury is not negligent, but intentional. Again, where one is seen in danger, though placed there through his own negligence, one. who, thus seeing him, omits ordinary care to avert an injury to him, is not alone negligent, but is wanton, and, as wantonness of this kind is akin to wilfulness, there is an opportunity for applying the same rule, and defendants have been held liable under such circumstances. And again, we can conceive of a degree of recklessness which, by reason of its coincidence with probable disaster, is closely allied to the foregoing, and should perhaps be governed by the same rule; but it does not follow that all acts that counsel or jurors might, in the light of subsequent events, be inclined to call reckless, should be treated as something more than negligence, and classed with intentional, rather than with negligent, acts, when it cannot be said that it was coincident with a probable disaster.”
A reference to decisions is made, and it is said:
"In all of these cases the negligence of the defendants occurred when there was a condition of danger, and it may be said that it was unimportant how such antecedent condition arose, or whether it was due to the negligent act of the plaintiff or not. The defendant’s wrong being a want of ordinary care, which care would have prevented the accident notwithstanding plaintiff’s antecedent negligence, it was responsible for it, and plaintiff’s antecedent negligence being at most a remote cause, and there being no other negligence on the part of the plaintiff, he might recover. It has in some cases been said that his negligence might be said to be a remote, and not the proximate, cause.
“We have held that a defendant who backs its cars at high speed across a highway in a city or village, without having a brakeman upon or in charge of the same, is chargeable with gross, i. e., great, negligence,*325 and cannot maintain the defense of contributory negligence, where the presence of such brakeman, and the use of ordinary care, would have shown plaintiff’s danger, and made it possible to avert the accident. This rule is subject to the exception of such negligence on the part of the plaintiff as occurs after his discovery of the danger. In our opinion, the term ‘gross,’ as applied to negligence, has no such broad legal effect as is contended for in this case; but whenever the defendant sees a plaintiff in danger, or by exercising only ordinary care in the discharge of his duty should discover such danger, in time to avert an injury, and either fails, after discovering it, to take steps to avert it, or fails to discover the danger, the fact that the plaintiff’s danger arose, in the first place, through his own negligence, does not prevent his recovery for an injury sustained. * * *
“The doctrine of responsibility, notwithstanding discovered negligence of the plaintiff, does not apply where the plaintiff’s negligence is, in the order of causation, either subsequent to, or concurrent with, that of the defendant. Smith v. Railroad Co., 114 N. C. 728 (19 S. E. 863, 923, 25 L. R. A. 287); Holmes v. Railway Co., 97 Cal. 161 (31 Pac. 834). Thus it it said that while one discovered by an engineer, negligently walking on a railroad, may be entitled to recover, if the engineer, apprehending the danger, makes no effort to avert it. He cannot recover if, after becoming.aware of the danger, he makes no proper effort to escape. International, etc., R. Co. v. Garcia, 75 Tex. 583 (13 S. W. 223); Louisville, etc., R. Co. v. Webb, 90 Ala. 185 (8 South. 518, 11 L. R. A. 674); Smith v. Railroad Co., supra. And in Ochsenbein v. Shapley, 85 N. Y. 214, this was held as to one who, after notice that a boiler is to be tested in a reckless manner, persists in standing by until it explodes.”
In Fike v. Railroad Co., 174 Mich. 167, the trial court, in instructing the jury, said, p. 202:
“Even though you may believe from the evidence that the plaintiff or Charles Fike was guilty of negligence (in driving with a team upon a railroad track, where defendant’s train ran them down) yet if you further believe that such negligence of both the plain*326 tiff and Charles Fike ceased before the negligence of the defendant began, and did not again occur before or at the time of the collision, then the jury should find for the plaintiff.”
This court had no occasion to approve or disapprove this instruction, it being favorable to defendant. But,, assuming that it is a correct statement of applicable law, no violence is done to any established rule of the law of negligence when it is held that upon the peculiar facts disclosed by this record, namely, the admitted discovery of plaintiff’s peril by the agents of defendant, it became the duty of those agents to seek to avert the threatened collision, neglect or refusal to perform the duty being subsequent negligence.
There is no evidence of wanton or wicked conduct of defendant’s agents after discovering the peril of plaintiff. Quite the contrary is proven. It may be said, as matter of law, that there was no negligence in discovering— apprehending — plaintiff’s peril. If they were negligent, it was in not sooner bringing the street car to a stop. The humanitarian doctrine invoked by plaintiff is available to her only when it appears that the operator of the car could have stopped it before it reached the Eighth street crossing. According to the testimony, the street car was about 30 feet in length and was moving, when plaintiff’s movements were discovered, at the rate of 25 miles an hour. This is more than a car’s length each second. Assuming, and the assumption is favorable to the plaintiff, that instant action should have begun when the car was 90 feet from the crossing point, about three seconds of time elapsed between the discovery of the peril and the collision. Assuming, as I think the rule requires us to do, basing negligent -conduct upon the discovery of peril by the student motorman, that the car was less than 90 feet away, the elapsed time is proportionally
The testimony of the policeman (his opinion) should not have been received, but, in view of the testimony of the motorman, based upon his own experience, and not a mere expression of opinion, it should not be held that admitting it was reversible error.
The judgment must be affirmed.