88 Mich. 442 | Mich. | 1891
Lead Opinion
This is an action on the case for negligence.
Deféndants’ road crosses Croghan street about 300 feet east of Orleans street, in the city of Detroit, at grade. The southerly side of the street, west of the track, is occupied by frame dwelling-houses, two stories high, built close together, and flush with the southerly line of Croghan street; and the most easterly house is about 40 feet from the westerly track. Cars going north on defendants’ track climb a heavy grade. A gate-keeper and drop-gate are maintained by defendants at the crossing. A street railway is operated on Croghan street. Plaintiff claimed that, while driving easterly upon one of the streetcars, he stopped his car at Orleans street, to allow a passenger to alight; that in approaching the crossing the street-car conductor usually jumped off, and ran forward to the crossing, and signaled him whether to come on or stop; that in this instance the conductor went forward as usual, and plaintiff turned on the brake to check his car,
Defendants claimed that the whistle was blown, and that the locomotive had a steam bell attached; that Hurley was not the gate-man or their agent; that the gate-man and Hurley were together in the gate-keeper’s shanty when the engineer of the approaching locomotive whistled for a switch, which was north of and near the crossing; that the gate-man and Hurley then came out of the shanty, the former going to open the switch, and the latter going to the locality of the drop-gate. The gate-man says that he told Hurley to attend the gate or look out for the street-cars; but Hurley says that he received no instructions from the gate-man, denies .that he signaled the plaintiff
The court submitted the case to the jury, but after the jury had retired, and it became evident that they could not agree, the jury were recalled, and directed by the court, upon its own motion, to bring in a verdict for defendants.
The court erred in directing a verdict. The case comes clearly within the principles laid down in Richmond v. Railway Co., 87 Mich. 374. In that case there was no gate, but there was a flagman, whose duty it was to notify the public of approaching trains. He was in the shanty, and ran out too late to avert the collision. It was shown that he could be seen sitting in the shanty from the street-car. In the present case there was a gate, which was open, and thereat a person, who not only did not close it, but who, it is claimed, signaled the plaintiff to come on; in other words, assured him that it was safe to cross the railroad tracks. The testimony tended to show that the gate-man . had up to this time been present at his post, and that usually, when trains were approaching, the gate was closed, or dropped across the street-car tracks. The gate-keeper was clearly negligent in leaving his post, knowing that the engine was approaching the crossing, without closing the gate, or giving some signal of danger. It has been frequently held that when gates are provided the public have a right, the gates being open, to presume, in the absence of knowledge to the contrary, that the gate-men were properly discharging their duties, and that it was not negligence on their part to act on the presumption that they were not exposed to a danger which could only arise from a disregard of their duties by the gate-men. Glushing v. Sharp, 96 N. Y. 676; Railway Co. v.
In the present case it is urged that Hurley was not a -servant of the defendants, and' hence defendants are not responsible for his act in assuring plaintiff that it was safe to cross. Conceding that Hurley was not the servant of the company, and was a mere by-stander, his conduct bears upon the question of the contributory negligence of the plaintiff. It is one of the circumstances properly to be con-sidered by the jury in determining that question. If, as he claims, he did not signal plaintiff to .come on, but did signal him to stop, the jury would be entitled to consider that fact .in determining the question of plaintiff’s negligence, and its ¡weight would not be materially affected by the fact that -he was not the servant of the company. Hurley occupied the place usually occupied by the gate-man. His pres•enee there, the plaintiff’s belief that he -was the gate-man, his conduct there, and the open gate, are all cir•cumstanees to be considered by the jury in determining the question of plaintiff’s negligence. An open gate would not excuse plaintiff’s advance upon the crossing in the face of a signal of danger, or -the protests of a bystander; and an assurance of safety, although given by a ■stranger, is entitled to consideration and weight in ■explanation of the conduct of one. to whom’the assurance .is given.
It is insisted that the testimony tends to show that the Tules of the street-dar company provided that, before "attempting to cross the tracks, the driver should stop the •car, and wait until the conductor should go ahead and see that it was safe to cross; that the driver did not
“The order of my company was for the men to see that the way was clear before they crossed. That was the written order they had; so that, whenever the gate-man gave them the right of way, by either telling them or directing them to proceed, it was our instructions to> rely upon his order. The instructions were, if the man at the gate waved them to come on, to go on. At that time there were no instructions to get down to run ahead; but the instructions were to see that the way was clear, and, if he waved them on, to go on. We do not now depend upon anybody but ourselves. Everybody runs ahead. But at that time we were relying upon the railroad. * * * We depended upon the day watchman for safety.”
It is urged that the man at the gate told the driver to “hurry up,” and that that of itself was a warning; but this was after the gate-man had beckoned the driver tn come on, after the driver had started up the horses, after he had reached the line of defendants’ right of way, on a down grade, and before either driver or conductor had seen the engine approaching. It cannot be presumed that.
Respecting defendants’ negligence, the act which induced plaintiff to approach the crossing ’ without the usual precautions was not necessary to sustain the charge. Their negligence was established by. the. showing as to what they failed to do. If they failed to close the gate, and to w'arn plaintiff of the danger, a case was made out, and plaintiff was entitled to recover, unless plaintiff was shown to have been negligent. If plaintiff was warned not to approach the crossing, and the warning was of such a nature that an ordinarily watchful, and prudent person could have seen and understood it, and plaintiff did not heed it, but drove upon the tracks in the face of it, he was gtiilty of contributory negligence, and cannot recover. If, however, the plaintiff was assured by a signal from any person, whether he was a servant of defendants or a stranger, that it was safe to cross, that circumstance is entitled to be ’considered by the jury as excusing his failure to observe the precautions ordinarily taken, especially as the person giving the signal occupied the place usually occupied by the gate-keeper, and plaintiff beliqved him to be the gate-keeper.
In view of what has been already said, it is unnecessary to discuss the instructions given to the jury before they were recalled.
The judgment is reversed, and a new trial ordered, with costs.
Dissenting Opinion
(dissenting). I cannot concur in the conclusion reached by my brethren. The following facts are established by the plaintiff's case:
1. Plaintiff was familiar with the crossing, and had for some time crossed it 16 times a day. Thirty-eight regular trains passed each day, besides switch trains. He knew that one was liable to come at any moment; that there was a slight descent between the gate and the track; and that the street railway track was wet, thus rendering it more difficult Jo stop the car.
2. On reaching a point 41 feet from the track he could see the engine 700 feet away.
3. He approached, this point at a high rate of speed.
4. The rules of the street-railway company, in whose employ plaintiff was, required their employés to see that the way was clear before they crossed. It appears that written instructions were given, but these were not produced. The conductor, who was with the plaintiff at the time of the accident, says: ‘‘The orders were, when we came to that crossing to have the cars slack down, and the conductor run ahead, and see if the way was clear.” It is to be regretted .that these instructions, being in writing, were not produced, so as to remove all doubt as to what they were. Mr. Hazard, the superintendent of the street-railway company, testified upon this point as follows:
“ The order of ■ my company was for the men to see that the way was • clear before they crossed. That was the written order they had; so that, whenever the gate-man gave them the the right of way, by either telling them or directing them to proceed, it was our instructions to rely upon his order. The instructions were, if*451 the man at the gate waved them to come on, to go on. At that time there were no instructions to get down and run ahead; but the instructions were to see that the way was clear, and, if he waved them on, to go on. We do not now depend upon anybody but ourselves. Everybody runs ahead.”
On cross-examination he testified as follows:
“There was a written order on the time-table; a timetable put up; and there was an order saying, if the way was clear before attempting to cross— That is, the order that was on the time-table; also on the timetable that was written. There were sometimes — not then, before that time — there were times there that there was no watchman there at all, and during the day sometimes a watchman had to step out for something, and we .see the order was given in case they did not see him there, or he was not there and waved them on, it was the order to see that the way was clear before attempting to cross; that is what was meant. The matter of ■the- watchman beckoning came up. Probably some of the men asked me in case he motioned ahead to go .ahead, and I told them, ‘Why, yes.’”
He further testified that he did not remember of having said to- Mr. Evans to go ahead if the watchman beckoned, nor could he remember any particular one to whom he made such statement. He says: “I know some of them have spoken to me about it. I know I have said so to some of them.” It is very significant, as bearing upon the question of these instructions and the conduct of the plaintiff, that the conductor on this occasion jumped from the car at the usual place for the purpose of running ahead and ascertaining if the track was clear; but the horses were going nearly as fast as he could run. He succeeded in getting nearly abreast of the horses’ heads, when he saw the engine approaching, and hallooed to the driver to stop. The testimony of Mr. Hazard, above quoted, is very indefinite. It is very difficult to determine from it just what he means. It is certain, however, from his testimony, that there was imminent
5. The gates were up, and the gate-man, plaintiff knew, was not there.
6. The accident would have been avoided if the plaintiff had approached the crossing with his horses upon a walk.
7. The only excuse given by plaintiff for not approaching this dangerous place with his horses under control is that Hurley, who did not represent either of the defendants, and was not in their employ, motioned to him to go ahead, and hallooed to him to hurry up. Plaintiff testifies that, if a stranger had waved to him, and said, ‘•'Hurry up,” he would have gone across without stopping or looking. This is precisely what he did do in this case. It is difficult to imagine a case where common prudence required greater care of a street-car driver than in the present one. He had no right to rely upon the signal from a stranger, and if it be a fact that this stranger called him to hurry up, and stood at the gate motioning him forward, this of itself was a warning that there was danger approaching. The safety and lives of passengers were under his control in approaching this most dangerous place, and a proper. regard for the safety of his passengers and of himself required him to approach this-crossing with his horses under control. I think the plaintiff was not only guilty of negligence, but that his negligence approached to recklessness. In my judgment, a common and proper regard for the safety of those