256 N.W. 438 | Mich. | 1934
Plaintiff's decedent was riding as a guest passenger with defendant Andrews in an automobile when the automobile was struck by the Duluth, South Shore Atlantic Railway train and decedent suffered injuries ultimately resulting in his death. Suit was brought by his administratrix to recover damages therefor. The accident occurred at a crossing of a trunk line highway and the tracks of the railroad company on the railroad right of way. There is the main track and a spur or loading track along which forest products were piled up. It is plaintiff's claim defendant Andrews was guilty of gross negligence and wanton and wilful misconduct and that such gross negligence and wanton and wilful misconduct is not imputable to plaintiff's decedent; and defendant railway company is liable for its own negligence. Apparently by agreement of parties, the case was disposed of on motion made by *279
the defendants to direct a verdict after the opening statement of plaintiff's counsel. The important question is whether, under the undisputed facts, defendant Andrews was guilty of gross negligence or wanton and wilful misconduct. It is claimed by plaintiff that Andrews did not see the railroad track and train in time to stop his automobile. In Elowitz v. Miller,
We think the court was correct in holding the defendant Andrews was not guilty of gross negligence or wanton and wilful misconduct. Defendant Andrews may have been guilty of negligence, and being guilty of ordinary negligence his negligence is imputed to plaintiff's decedent who was riding with him, and such negligence upon the part of defendant Andrews contributed to the injury of plaintiff's decedent which resulted in his death, and plaintiff may not recover against the railroad company, even though the railroad company may have been negligent in the operation of its train which, under the opening statement of counsel, does not affirmatively appear.
A railroad company owns its own right of way. It has a right to operate its trains thereon. A railroad crossing is a place of danger. The accident involved *280
occurred in broad daylight; the train was being operated in a place where it had a right to be. It is not claimed it was operating at an undue rate of speed. There is no affirmative statement that the whistle was not blown nor the bell rung. The only claim being that plaintiff's decedent and those riding with him in the automobile heard no warning sign from bell or whistle. This court in Davis v. Railway Co.,
NELSON SHARPE, C.J., and NORTH, FEAD, WIEST, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred.