203 Mich. 668 | Mich. | 1918
On June 29, 1917, at about ten o’clock in the evening, one of defendant’s interurban cars, known as the “steamboat express,” operating between Grand Rapids and the Holland boat dock, collided with plaintiff’s limousine which was stalled on defendant’s tracks between Jenison Park and the Olympia Pavilion at or near Holland. A jury in the Kent circuit court assessed plaintiff’s damages to his automobile at the sum of $990.85. Defendant reviews the proceedings and complains of the refusal of the trial court to direct a verdict in its behalf.
Counsel freely criticises the conduct of Fischer and the other occupants of the car, but he does not suggest what further they could have done to avert the collision except to say that Fischer could have made a better effort to flag the car. As Fischer was driving on to the south track the steamboat express from Grand Rapids passed to the west over the north track, and counsel says that he knew it would return from the dock in a few minutes and he should have made a better effort to warn the motorman. The record shows in this connection that one Moran, who Was assisting Fischer in his effort to release the car, upon hearing the whistle of the approaching car, ran down the track about 75 feet and swung his arms, but the motorman paid no heed to it. The location where the collision occurred was well lighted. In front of the pavilion at the south and at the entrance to the park on the north there were many electric lights. It was a place where pedestrians and automobiles were passing frequently in the summer months. Fischer had little reason to expect that a motorman would approach a place of this character driving his car at a rate of speed which would preclude him from stopping it within a limited space if it became necessary, and evidently it was a rule of the company that cars should approach this place with caution, as it had posted warning signs along the track in that vicinity, reading: “Go slow.” “Slow down.” We are of the opinion that the question whether Fischer was negligent
Based upon this testimony, the trial court instructed the jury that defendant was guilty of negligence as a matter of law because, under the motorman’s own concessions, the speed of his car was such that it could not be stopped within the limit of his vision. This conclusion was rested on the cases of Ablard v. Railway, 139 Mich. 248, and Hibbler v. Railway, 172 Mich. 368.
It was said in the Ablard Case that:
“It was the duty of the motorneer to have the car under such control as to admit of its being stopped after he became able to discover objects on the track and before a collision with such object should occur.”
In the Hibbler Case this rule was quoted, approved and applied to the facts of that case. Counsel recognizes the rule in these cases but seeks to distinguish them from the present one on the ground that these cases arose in a city street where traffic is more or less dense and congested, and he argues that conditions are different with interurban railways and therefore the rule should not apply to them. There is some force in this distinction, but the difficulty of giving it effect lies in the fact that this court has already applied this rule to interurban railways. Nissly v. Railway Co., 168 Mich. 676.
In the case cited a recovery was sought for the
“This motorman was not bound to anticipate that plaintiff’s horse would be at large or concealed behind a tree, and therefore owed no duty to reduce his speed of what would otherwise be reasonable. It is undeniable, however, that if his rate of speed was unreasonably great, it would be negligent, and we are of the opinion that if the motorman was running his car so fast that he could not have stopped it within the distance that this colt could have been seen upon a straight track, the jury might have been justified in finding this speed unreasonable. * * *
“This motorman was not bound to anticipate that a colt would be at large and come suddenly upon the track so near that the car could not be stopped in time to avert an accident, and, if his speed was not such as to have precluded the stopping of the car within the distance that such an object could have been seen upon the track that night, there was no negligence. This was, however, a question for the jury.” Citing the case of Gilmore v. Railway Co., 153 Pa. 31 (25 Atl. 651, 34 Am. St. Rep. 682), and 2 Nellis on Street Railways (2d Ed.), § 515.
We must conclude, therefore, that this rule applies to the operation of interurban cars as well as to city street cars. The testimony of the motorman concedes that he violated this rule, therefore'the action of the court in charging the jury that defendant was guilty of negligence as a matter of. law must be sustained. Had any question of fact been involved, as in the Nissly Case, which was necessary to be determined before the rule could be applied, the question would have been one for the jury. When, however, the motorman comes into court and admits that he did an act which this court has said is a negligent act, there is no occasion to submit the question to a jury.
Counsel observes that this rule is a harsh one to apply to interurban traffic in view of the public de
The judgment must be affirmed.