197 Mich. 308 | Mich. | 1917
Plaintiff’s intestate, Albert Brog, was struck and instantly killed by one of defendant’s south-bound interurban cars at a highway crossing in the village of Moline, Mich., shortly before 2 o’clock in the afternoon of June 12, 1915, and this action was brought by plaintiff under the instant death act to recover damages resulting to deceased’s estate.
Moline is a small village located a little over 16 miles south of the city of Grand Rapids, through which defendant’s line between Grand Rapids and Kalamazoo runs upon a private right of way, except where it crosses streets and highways. Its cars are operated under electric power conducted to them by a third rail, except in streets, highways, and places not inclosed, where a trolley wire is used.
At the time of the accident this line had been recently completed, and in operation little less than a month. Defendant was then operating daily over the line 35 so-called “trains,” 17 running north and 18 running south, a train consisting of but a single car. Three of these, running daily each way, were fast
Of the environments of the accident it was shown that about 140 feet west of defendant’s track the Grand Rapids & Indiana Railroad runs practically parallel for some distance, and still further west, beyond the Grand Rapids & Indiana track, is the principal street of the village of Moline, extending for about a block north and south, open on the east side to defendant’s railway, and lined on the west side by buildings used for various business purposes facing towards the tracks. In securing its right of way defendant purchased some land in Moline on which was located a two-story frame dwelling house just east of its line which it converted into a station. It stood about 22 feet east of the center of defendant’s track, but not
Albert Brog was a farmer about 42 years old, living with his wife and two children on his farm of 60 acres located 4 miles south and east of Moline.' He generally
The issues to which testimony was directed and over which the parties contended under the disputed facts, or by inferences from the undisputed facts, involved counter charges of negligence, including contributory negligence by plaintiff’s decedent and discovered or gross negligence on the part of defendant. The trial court instructed the jury as a matter of law that plaintiff’s decedent was guilty of contributory negligence, and submitted the question of defendant’s gross negligence as an issue of fact for their determination. The trial resulted in a verdict of $5,000 in favor of plaintiff. The questions raised for review were presented and preserved upon the trial by timely objections, motions, and requests, and on motion for a new trial, which was overruled.
Prejudicial error is assigned and urged upon the court permitting plaintiff’s counsel, against objection, to debate to the jury the question of deceased’s contributory negligence, after disposing of it as a matter of law. In summing up the case plaintiff’s counsel said to the jury in part:
*314 “It has come to pass in this State almost that no man can cross a railroad crossing, no matter whether he is afoot pr with a team or an automobile or how he may be, unless he is guilty of what the law calls contributory negligence. It don’t make any difference what he does, how he looks or when he looks or where he stops or whether he goes aheád or whether he turns around; if he does the wrong thing usually it is said that that is contributory negligence in the crossing of a railroad in this State. Unfortunately that has come to be true in this State.”
Objection being made to this line of argument and correction of counsel asked, the court said:
“I don’t see any objection to that statement. It may stand.” '
And counsel was permitted to continue the discussion applying such views to the cáse in hand. The court had ruled that contributory negligence was not an issue for the jury, and the only question of fact to be submitted was defendant’s gross negligence. Counsel’s insistent discussion of the subject, apparently with approval of the court, could serve no purpose but as prejudicial appeal to the jury to disregard the rilling of the court and decide in plaintiff’s favor the question of contributory negligence as an issue of fact. Under the theory upon which.the case was submitted, permitting such argument to the jury against objection was manifest error.
Plaintiff’s declaration does not, in the phraseology adopted, charge that the misconduct complained of was wanton, wilful, reckless or gross, but alleges that defendant’s described conduct of omission and commission was careless and negligent, and, so far as the record discloses, the theory of gross negligence was first advanced, or at least emphasized, by the court on conclusion of plaintiff’s testimony, in overruling defendant’s motion for a directed verdict on the ground that the negligence of plaintiff’s intestate had caused
“I shall refuse to take the case from the jury, and will instruct the jury plaintiff can recover only on showing of conduct amounting to gross negligence.”
Objection to this was then made by defendant on the ground that the declaration was not framed on the theory of a right to recover notwithstanding contributory negligénce of plaintiff’s intestate, and gross negligence was not pleaded. ■ The court stated, however, that the casé would be submitted to the jury on the question of gross negligence only, and the trial proceeded under such ruling.
Counsel for plaintiff state that the ruling as to contributory negligence was “to our surprise,” and the subsequent argument to the jury on that subject, before referred to, “was merely in the nature of a reply to the court’s ruling”; while counsel for defendant intimate similar, but suppressed, emotions on the subject of gross negligence.
Under the views expressed in Weitzel v. Railway, 186 Mich. 7 (152 N. W. 931, 153 N. W. 831), it can well be questioned whether the declaration was sufficient for the theory on which the case was submitted, but, beyond the question of pleading, the theory of antecedent negligence as gross negligence, upon which that question was submitted to the jury, is not tenable. The court charged upon that issue in part as follows:
“If you find from the proofs that the rate of speed of the car was excessively great as it approached the north crossing, and at any point where the deceased came into view, and you also find that ordinary care and prudence and a due regard for human life would require the motorman to run more slowly or take precautions to stop the speed of the car sooner, and that by the exercise of ordinary care in this respect the accident could and should have been prevented by this*316 means, then the failure to take these precautions would amount to gross negligence.”
This instruction relates to a situation where it is found by the court that plaintiff was as a matter of law guilty of contributory negligence. We discover no testimony from which a jury could fairly infer that after discovering deceased was actually in or about to put himself in a place of danger the motorman acted maliciously, wantonly, or in reckless disregard of his duty, or failed to do all that he then could to avert or minimize the accident. If negligent at all, his negligence occurred in assuming the excessive rate of speed before he discovered deceased’s negligence, as the court determined it was. Such antecedent negligence, even though great, is not gross negligence as defined by this court, though in connection with it failure to make every reasonable effort to avoid the accident after the concurring and contributing negligence of the party injured has been, or by reasonable diligence ought to have been discovered, may become such. Richter v. Harper, 95 Mich. 221 (54 N. W. 768); Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); Labarge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073); Putt v. Railway Co., 171 Mich. 216 (137 N. W. 132); Good Roads Construction Co. v. Railway Co., 173 Mich. 1 (138 N. W. 320); Berry v. Railway Co., 173 Mich. 181 (138 N. W. 1038); Vought v. Traction Co., 194 Mich. 343 (160 N. W. 631). Measured by these decisions and others to which they refer, the testimony in this case falls far short of raising any issue of fact for a jury upon the question of defendant’s gross negligence, and this verdict rendered upon that theory cannot be sustained.
We are unable, however, to concur with defendant’s contentions that the undisputed testimony establishes deceased’s contributory negligence as a matter of law, and that plaintiff’s testimony wholly fails in support
Upon the question of contributory negligence the testimony is in marked contrast in material particulars. Defendant claimed and introduced testimony tending to show that plaintiff’s decedent approached this crossing carelessly, without stopping to look and listen, and upon seeing the approaching car, while yet in a place of safety some distance east of the side track (which is from 4 to 6 feet east of the main track), recklessly whipped his horses to a run and unsuccessfully endeavored to cross in front of the approaching ear, the motorman testifying he “was coming up that incline about 20 or 25 miles an hour.” On the other hand, plaintiff introduced testimony showing or tending to show that his decedent was driving slowly and carefully along the highway towards the village, watching in every direction, following close behind a buggy which drove over the track in safety ahead of him without any indication of having observed an approaching train; that as he approached the track with his horses upon a walk he first looked north up the track towards the station, then to the south, then to the north again, and as his horses were just going upon the side track the car came in view as it passed the station, and, manifestly taken by surprise, he rose in haste, leaned forward, and struck his horses with the lines, starting them hurriedly forward; that intervening trees, shrubbery, buildings, and particularly defendant’s. station, with the platform projecting in front of it, obscured his view to the north as he drove eastward along the highway until he approximately reached the side track, by reason of which and the incline of the road along which he was driving he was unable to see a car until he was close to the track, when one came
While failure to stop, look, and listen before driving
“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. Guggenheim v. Railway Co., 66 Mich. 150 (33 N. W. 161); Richmond v. Railway Co., 87 Mich. 374 (49 N. W. 621); Breckenfelder v. Railway Co., 79 Mich. 560 (44 N. W. 957); Burnum v. Railway Co., 137 Mich. 580 (100 N. W. 1022); Id., 148 Mich. 370 (111 N. W. 1036); Coffee v. Railroad Co., 139 Mich. 378 (102 N. W. 953); Hintz v. Railroad Co., 140 Mich. 565 (104 N. W. 23); Beck v. Railroad Co., 156 Mich. 252 (120 N. W. 983).”
Under the conflicting testimony upon material facts .we are unable to say, as a conclusion of law, that there was no issue for the jury upon whether deceased might not reasonably believe from the situation as presented to him that he was safe in proceeding to cross, and in what he did conducted himself as a reasonably prudent and cautious man would have done under like circumstances, while expecting, as he had a right to do, that defendant would operate its cars over its line in a lawful manner.
There is testimony in the case that this fast train, behind its scheduled time, running past its station through the village and over closely adjacent crossings, was speeding by at from 70 to 75 miles an hour, while by the location of its station and platform defendant had made it more difficult for one traveling east on the south highway to see a car coming from the north when approaching the crossing, rendering it additionally dangerous in that particular. To what extent, if any, it was an unusually dangerous crossing is a matter upon which the testimony is in sharp conflict
“These cases do hold that the exigencies of modern travel require rapid transit, and sustain the statement hereinbefore made that a steam car is not necessarily negligently run when a high rate of speed is attained, and that speed alone is not per se negligence. It does not follow that a rate of speed making it impossible to get off from a track in safety after it is possible to discover a car is not a negligent rate of speed, nor that it is not negligent to maintain a highway crossing, exceptionally dangerous, without some provision for preventing such accidents. It is true that the whistle and incessant ringing of the bell, together with the noise accompanying a heavy train on a steam road, has generally been deemed sufficient care without placing flagman or electric bells on the crossings, but there are cases where the contrary has been held.”
References to certain matters thought to indicate issues of fact for determination by a jury in no sense imply or are to be taken as indicating in what manner the jury should decide those issues. We deem it unnecessary to pass upon other questions raised, as we cannot assume they will arise on a retrial of the case.
The judgment is reversed, with costs to defendant, and a new trial granted.