| Mich. | Sep 27, 1898
Lead Opinion
The question in this case is whether the plaintiff was guilty of contributory negligence. The
Dissenting Opinion
(dissenting). Plaintiff sued defendant to recover for injuries sustained by him while attempting to cross the tracks of the defendant company on Michigan avenue, at the intersection of Wabash avenue. The circuit judge directed a verdict in favor of defendant. Plaintiff appeals.
In directing a verdict, the circuit judge used this language :
“ The plaintiff started from, the north curb of Michigan ■ avenue across the track. Before leaving the curb, he says*211 that he listened and looked both ways for an approaching ■car, but saw and heard none, and that he did not look again. He passed, drawing his wheelbarrow after him, in front of the approaching team, and, without looking again, attempted to cross the north track, when he was struck by the defendant’s car coming from the east, and was injured. ”
It was the opinion of the circuit judge that the plaintiff was guilty of contributory negligence, and that the case was governed by McGee v. Railway Co., 102 Mich. 107" court="Mich." date_filed="1894-09-25" href="https://app.midpage.ai/document/mcgee-v-consolidated-street-railway-co-7937269?utm_source=webapp" opinion_id="7937269">102 Mich. 107 (26 L. R. A. 300, 47 Am. St. Rep. 507). Counsel for defendant also cite, in favor of this ruling, Houghton v. Railway Co., 99 Mich. 308" court="Mich." date_filed="1894-03-20" href="https://app.midpage.ai/document/houghton-v-chicago--grand-trunk-railway-co-7936930?utm_source=webapp" opinion_id="7936930">99 Mich. 308; Hine v. Railway Co., 115 Mich. 204" court="Mich." date_filed="1897-12-07" href="https://app.midpage.ai/document/hine-v-bay-cities-consolidated-railway-co-7939267?utm_source=webapp" opinion_id="7939267">115 Mich. 204; Henderson v. Railway Co., 116 Mich. 368" court="Mich." date_filed="1898-03-22" href="https://app.midpage.ai/document/henderson-v-detroit-citizens-street-railway-co-7939451?utm_source=webapp" opinion_id="7939451">116 Mich. 368.
We think the circuit judge overlooked some of the plaintiff’s testimony. It was his claim that he came from the north, on the west side of Wabash avenue, to Michigan avenue; that, looking east from Michigan avenue, his view was obstructed by a team which was coming from the east, which team was on the north side of the ;street-railway tracks, and also by a grocer’s wagon, still farther east, which was backed up to the curb, the horse’s head reaching towards the railway tracks. The record -shows that from the curb to the rail was 16 feet. The plaintiff testified he intended to cross Michigan avenue at the crossing designed for foot passengers.
“When I arrived at that crossing, I looked west to see if there was any car. A car had just gone by from the west, down to the city, and I stood and looked east and west, and could not see a car coming from the east. I saw a car going east, on the south track, which went east before I passed. In the west I could not see a car. Looking to the’east, I saw a team of horses and a covered grocery wagon. * * * Besides the team and sleigh, I saw a grocery wagon standing between the butcher shop belonging to Slitts, on the east and north corner, — the northeast corner. That faces on Michigan avenue. The wagon was backed up to the curb, and the horse was .standing out towards the street-car track. The wagon was like a grocery wagon. It' had a top to it. As I was*212 looking, I listened for another car. I stood on the curbstone. I did not hear any alarm of any kind. When I did not see any car coming, I undertook to go across, and then the car came right onto me. * * * When I saw the car, I was very near the track, — right near the track. * * * The car was going west from the east, and no bell or alarm was sounded from that car before I saw the car. When I first saw the car, I should say I was just about onto or very near the track. The first moment I saw the car, I dropped the wheelbarrow, and jumped back from where I saw the car. * * * When I first saw the car, it was about five or six feet from me.”
On the cross-examination he testified:
“ When I looked up and down the track of the street, it was about three o’clock in the afternoon. I was then about four feet from the curb on the street on Michigan avenue, when I looked both up and down. Looking down, I could not see, for a team of horses was there. * * *
‘ ‘ Q. Then, when you were three feet from the track, and the horses were 15 feet back of you, what was there, if anything, to prevent you from seeing down the track ?
“A. The team of horses and the grocery wagon. * * *
“Q. If you came within three feet of that track, and the team of horses were 15 feet east of you, what was there to prevent you seeing the track or the car ?
“A. The team of horses and the grocery wagon. The team was on the street, and I could not see the car. * * *
"Q. And, when you got within three feet of the track, why could you not see?
“A. The team of horses, and the grocery wagon was backed up; the grocery wagon and horse extended out on the street-car line or track.”
This testimony shows, affirmatively, that plaintiff, after starting across the street, and when four feet from the curb, looked both up and down the street, and it is a fair inference from the other testimony that he looked when near the track, and could not see because of the team of horses and the grocery wagon. The testimony of the motorman was to the effect that he did not see plaintiff until within five or six feet of him, when it was too late to avoid hitting him. There was testimony tending to show that the car was running much faster than 15
Judgment should be reversed, and new trial ordered.
Dissenting Opinion
(dissenting). For the reasons stated when the case was heard before, we think the case should be reversed.
Rehearing
ON REHEARING.
The evidence in this case clearly shows that, had the plaintiff taken the trouble to look as he approached the track, he must have seen the car that struck him, in time to have avoided it. It is a logical and'necessary deduction from the established facts in the case, and, being so, the court properly directed a verdict for the defendant.
Our former judgment, and that of the learned circuit judge, are therefore affirmed.