Conroy v. Detroit United Railway

139 Mich. 173 | Mich. | 1905

Rehearing

ON MOTION FOR REHEARING.

Per Curiam.

A rehearing is asked in this case mainly because the court erred in holding that the cause of the jerk which caused the plaintiff to fall was as problematical as it was in the case of Etson v. Railway Co., 110 Mich. 494. In that case the car had nearly stopped between the two crossings, then gave a sudden jerk, and suddenly went ahead again, in consequence of which plaintiff was thrown from the platform. The only difference between the two cases is that one was a jerk after the car had nearly stopped, the other was a jerk when the car was being stopped for the next crossing. If it may fairly be inferred that the jerk was caused by the application of the brake, it might have been inferred in the other case that it was caused by the removal of the brake and the application of the electric current. In either case it is not evidence of negligence, for the reasons stated in the opinion in the Etson Case, and also in the opinion in this case.

The witness Woodworth, on whose testimony counsel for plaintiff mainly relies for the statement that the jerk was caused by the sudden application of the brakes, did not testify that he saw the motorman apply the brake; and, from his sitting position in the rear of the car, it is very doubtful if he could. On his cross-examination he testified that he did not see the motorman reverse the car.

' “ I do not know whether he did reverse it or not.

“Q. So that on this car you had a jolt when it was reversed ?

“A. It might have been; yes, sir.”

Plaintiff testified that the car had slackened a little when he put his foot down, and that, when the motorman put on the brake full force, “the car raised off the track.” He did not see the motorman, and evidently could not tell what caused the sudden jerk and raising of the car. He inferred the cause solely from what happened, and not from what he saw. If, however, it be conceded that the car was suddenly stopped by the application of the brake, there is nothing to indicate that it was done in a negligent manner.

Rehearing denied.

---

Lead Opinion

Grant, J.

The circuit judge, in directing a verdict, held that the case was ruled by Etson v. Railway Co., 110 Mich. 494, as no one pretended to know what was the cause of the jerk which caused the plaintiff’s fall. The ruling was correct. See, also, Bradley v. Railway Co., 94 Mich. 35. The cause of the jerk in this case is as problematical as it was in either of those above cited. It is common knowledge that, in order to serve the public, street cars must be started and stopped with some celerity, the tendency of which is to throw one when standing. It was entirely unnecessary for the plaintiff to leave his seat, and stand with one foot upon the running board, when the car was running at full speed# He had ample time to arise and alight after the car stopped. Whether this action on his part was negligence, we find it unnecessary to determine.

Judgment affirmed.

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.