196 Mich. 695 | Mich. | 1917
This is an action brought by the plaintiff for injuries sustained by her on the evening of the 29th of June, 1912, while driving her automobile on Salzburg avenue, in West Bay City, over the crossing of the defendant railroad company, her automobile colliding with the Detroit-Bay City passenger train, it being claimed, as a result of the negligence of the defendant in its operation. The plaintiff at the time of the accident was a woman nearly 52 years of age who had lived in Bay City all her life. On the day in question she had driven her car, in which were four other ladies, to Saginaw to shop. In the evening, after having had their dinner in Saginaw, the party returned to Bay City. At about 9 :15 they arrived at Salzburg avenue, the main business street of one of the outlying districts of Bay City, and approached the scene of the accident. Salzburg avenue runs approximately east
It is the plaintiff’s claim that as she reached the sawmill she was driving the car slowly, and she testified as to what occurred as follows:
“A. All the way coming the women were singing,;*697 having a good time, and I was running my car very slowly and enjoying the singing, and when we struck the pavement I said, ‘Now, girls, no more noise, because I see the mill is making a noise running nights, and here is this railroad track; I must be guarded for a train; I must look out for the train/ I_had been over that crossing before a great many times, and when I said that to the people in the car there was no more talking or singing or noise in the car after that whatever. As I came up to the crossing and before I had seen any trains I did not hear any sound of any train. I had heard no whistle or bell.
“Q. As you approached this crossing from the west is there any place after you reach Salzburg avenue that you can look toward the south and see an approaching train?
“A. No, sir.
“Q. How far away from that crossing or how far away from Salzburg avenue would you say you had to be in order to see a train to the south?
“A. Well, I never took any particular notice coming up there; I always came up there on my guard, and I never noticed. I have never noticed as to whether you can, when you get anywhere near Salzburg avenue.
“Q. In driving along on Salzburg avenue beside the mill can you look south and see a train when beside the mill?
“A. Not very far, I. know that. As I came up to the crossing that night I did look at the safety gates. They were up, and the safety gates did not lower at any time that night before the train came.
“Q. Now as you drove up to this crossing state what you did with reference to listening for a train.
“A. Why, I threw; — put my car under perfect control with both feet and hands, and was listening very intently for the noise of the train. The mill made a great deal of noise, and I would look out to view the track and look to see if the gates were coming down, and I remember distinctly to see if there was a train, and then I turned my head to look at the gates, and the gate did not come, and I looked again and I saw the train. At the time I saw the train the gates had not lowered then.
*698 “Q. Where were you with reference to the corner of the mill, if you know, or as you looked up' toward the train what was there between you and the train, if anything?
“A. Why the mill was between me and the — the corner of the mill and the car that was up there. There was a car loaded, a loaded car there.
“Q. How long had you been familiar with that crossing; for some time?
“A. Near since the road was laid, I think. I have lived in Bay City all my life. I have gone over that crossing in the nighttime a great many times, and in the daytime, and have seen other trains pass over the crossing.
“Q. You may tell the jury whether or not in all the years that you have been familiar with that crossing you have ever seen a train approach it or pass over it f at the rate of speed at which this train was approaching this night?
“A. I never saw a train never that came that was coming at the rate of speed that was coming that I spied that moment. I had been up at that crossing in the nighttime before when this passenger train came in with Mr. Garland a great many times, both with a horse and automobile, and up to the time of this accident I had never been at that crossing either in the daytime or nighttime when a train came through when the safety gates were not lowered. I know of no rule or regulation of any kind with reference to what hours the gates were operated. I always supposed when the gates were put there there was a man to take care of those gates night and day, as long as a train went over a track. As I approached the crossing on this night I did not know the gateman had gone away.
“Q. Did you hear any sound -of the approaching train before it came in sight?
A. No, sir.
“Q. What was the first knowledge you had the train was coming?
“A. When I turned my head from looking at the gates I saw the train coming with such terrific force; that is the first I heard that the train was coming.
“Q. Just tell the jury as best you can what you did or just what happened so far as you ca remember when you looked up and saw that train.
*699 “A. When I looked up and saw that train the first thing that came to me was the folks that were behind me, I was to save them, and I instinctively turned to get away from the train that was coming on to me, knowing that I didn’t have time to cross it. I turned to the north. After I had done that and started to make the turn I remember nothing more.
“Q. When you first saw the train and attempted to turn, state whether or not you turned your car as quickly or as far as you could.
“A. I must have, because I did not have time to think of anything only simply the thought that came at the moment, to save what I had.”
It appeared that the automobile proceeded down the track ahead of the train until it passed over the pavement and was about on the north sidewalk back of the gatehouse, when it was overtaken by the train, hit and whirled end for end off from the track to the west against a telegraph pole north of the north sidewalk on Salzburg avenue. The plaintiff sustained severe and permanent injuries, the extent of which is not questioned upon this record.
The plaintiff on the trial relied upon but two acts of negligence on the part of the defendant as grounds of liability, failure to ring the bell as required by statute, and running the train at an excessive rate of speed. At the close of the plaintiff’s proofs, and again at the close of the case, a motion for a directed verdict was made by defendant’s counsel because of the alleged contributory negligence on the part of the plaintiff, which were denied. The jury brought in a verdict for the plaintiff in the sum of $8,000. There are 57 assignments of error which relate to the admission of evidence, to the action of the court in overruling.the motions for a directed verdict, and alleged error in the charge and refusal to give certain of the defendant’s requests to charge.
The first real contention of counsel for the defendant seems to be that the great weight of the evidence
■ It is the further claim of the defendant that, as a matter of law, there is absolutely no evidence worthy of credence that the speed of the train over this crossing was so excessive as to justify an inference of negligence; that the great weight of the evidence conclusively demonstrates, that the speed over this crossing was entirely reasonable and proper, and that there is no evidence upon which negligence can be predicated. An ordinance of the city of Bay City, offered in evidence, limited the rate of speed of trains in the business section of the city to 8 miles per hour and 15 miles per hour in all other sections of the city. The plaintiff contended that the accident occurred in the business section of the city, and the court submitted that question to the jury under a charge to which no exception was taken. Five disinterested witnesses testified for the plaintiff as to the speed of the train, and
The next question, and the one upon which counsel for appellant seem to place the greatest reliance and which is argued at great length in the briefs, is the question of the alleged contributory negligence of the plaintiff. It is urged that we should determine that under the facts the plaintiff is guilty of contributory negligence as matter of law, and the case of Sanford v. Railway Co., 190 Mich. 390 (157 N. W. 38), is strongly relied upon. Counsel for the plaintiff contend that this situation is governed by the ruling of this court in Rouse v. Blair, 185 Mich. 632 (152 N. W. 204), where it was said:
“This court has recognized various exceptions to this general rule of requiring the traveler to stop before making the crossing, when the view is obstructed.”
Should we, as a matter of law, determine that under the circumstances of this case the plaintiff is guilty of contributory negligence? We have repeatedly stated that before such a conclusion can be arrived at all reasonable minds should reach the same conclusion, that under all the circumstances the plaintiff’s contributory negligence should bar recovery. See Beach
“I did not have time to think of anything only simply the thought that came at the moment, to save what I had.”
She had a right to expect of the defendant’s train that it would be operated in a lawful manner, and while she had no right to rely wholly on the performance by the defendant of its legal duty, and therefore avoid all caution for her own safety, she did have a right to assume that such duty would be performed. She stated that she had often crossed the crossing at this time of night, and that the gates had always been operated until after this train had passed. Mr. Heath, who had always lived in the vicinity, and who had been familiar with this crossing, stated that it was the practice of the watchman to wait for that train to go through before leaving the gates, and he said:
“As near as I can remember I never seen the train going through without the watchman lowering the gates.”
The engineer of the train stated that, according to his experience, the gates were usually down, and supposed that they were down on that night. The gate-
“Q. Now, it is a fact, is it, when that passenger train was late and it came 9 o’clock, you did not always leave on the minute?
“A. Oh, one or two minutes, or sometimes three. I did not confine it to two or three minutes after 9 o’clock. Sometimes I stayed longer than that to take care of the crossing, but not very often. But I have done it. I did that off and on at times during all of the years I worked there. People that went by there at different times might come up a little after 9 o’clock and still find me at the gates, and that is the way I had been doing my work all the time that I had been there. That night I had gone away before the train came in.”
The failure to lower the gates was not relied upon by the plaintiff as negligence on the part of the defendant, but we are of the opinion that it may very properly be considered as affecting the plaintiff’s contributory negligence. In Beagle v. Railroad Co., 184 Mich. 17, at page 24 (150 N. W. 345, 347), Chief Justice Brooke, in writing the majority opinion, quoted from the case of Ellis v. Railroad, 169 Mass. 600 (48 N. E. 839), where the rule is thus stated:
“While the raising of the gates justified the plaintiff in attempting to cross when he did, and while that fact, and the facts that no whistle was sounded and no bell was rung, are to be taken into consideration on the question of how much he must himself look and observe as he makes his way across, these circumstances do not excuse him from looking and listening, and taking thought for his own safety. He cannot rely wholly.upon them, and cannot recover without showing more as to his own conduct than that he so relied. * * * We are of opinion that, as matter of law, there was no evidence from which it could be found that the plaintiff himself exercised due care, and the verdict for the defendant was rightly ordered.”
Judge Taft, in a case which arose in this State,
“It is undoubtedly true that the failure to lower the gates modifies the otherwise imperative duty of travelers, when they reach a railway crossing, to look and listen, and. the presence of such a fact in the case generally makes the question of contributory negligence one for the jury, when otherwise the court would be required to give a peremptory instruction for the defendant.”
Judge Denison in the case of Erie R. Co. v. Schultz, 183 Fed. 673 (106 C. C. A. 23), said:
“In this court it has been distinctly recognized that the open gate is in the nature of an invitation to cross, and that the presence of such a fact in the case generally makes the question of contributory negligence one for the jury. * * * In spite of the fact that, as we think, the traveler, crossing under circumstances like those shown by this record, is not bound absolutely and at all events to look both ways on the very instant when he comes clear of the obstructions, still his failure to use his eyes and ears might, under some circumstances, be so clearly not the conduct of a prudent man that a verdict would be directed against him. But in the present case this question was rightfully left to the jury.”
See, also, Rademacher v. Railway Co., 158 Mich. 552 (123 N. W. 45); Imus v. Railroad Co., 172 Mich. 292 (137 N. W. 682).
It is the Well-recognized rule of law that the plaintiff could not rely entirely upon the stationary gates to insure her of a safe passage, but is required to make an independent observation before attempting to cross. This, when considering the evidence in the light most favorable to the plaintiff’s, case, it must be said that she did.
We are of the opinion that the decision in the Sanford Case, supra, is not necessarily controlling of the
“It could be well contended that the gates, which the record discloses were easily seen, being open, was clearly an invitation to one approaching to cross, an assurance that the way was safe.”
We are of the opinion that under all the circumstances of this case it should not be said as a matter of law that the plaintiff was guilty of contributory negligence, but that the court ruled properly in submitting that question, under proper instructions, to the jury.
Being of the opinion that the negligence of the defendant and the question of the contributory negligence of the plaintiff were submitted to the jury under