220 Mich. 1 | Mich. | 1922
This is a personal injury case in which the jury found a verdict for the defendant. The plaintiff brings the case here assigning error on the refusal of the court to give certain requests, and upon portions of the charge as given. Defendant runs its interurban cars in the city of Bay City on Columbus avenue, an east and west thoroughfare. From curb to curb Columbus, avenue is 42 feet wide. From each curb to the line of the street is 19 feet. The street car line is in the center of the street and is of standard gauge. Jackson street runs north and south and crosses Columbus avenue at practically right angles. Plaintiff resided on Jackson street north of Columbus avenue and was perfectly familiar with the crossing. She had been instructed in driving an automobile and was a skillful driver. On the afternoon of April 21, 1917, plaintiff took-four ladies for a pleasure ride in her husband’s machine. They drove about the city. It was a bright day and there was no ice or dampness upon the street. The car was a new one and in perfect working order. About half-past 2 o’clock she drove down Jackson street to where it
In the charge of the court there was given either in the language or in substance such of plaintiff’s requests as she was entitled to. We have so many
We can not accede to the contention of plaintiff’s counsel that to defeat her right of recovery her negligence must have been the proximate cause of the injury. If her negligence was a contributing cause, contributing to the proximate cause, then her negligence was contributory negligence and it need not have been the sole and proximate cause of the accident.
The meritorious and serious question in the case grows out of the following excerpt from the charge of the court:
“There is considerable conflict in the testimony as to just where this car was located. Some of the witnesses, some of the plaintiff’s witnesses put the car only about 100 feet away in front of the parsonage or near the alley, which was 100 feet away. Now, if you find that to be the fact, that the car was only 100 feet away when the plaintiff approached the intersection where she could see it, .then if she attempted to cross the street I charge you as a matter of law that she is guilty of negligence, because she would not be justified in attempting to cross the street if the street car was not any farther back than the alley •or 100 feet.”
Just before giving this instruction the trial judge had in effect charged the jury that if the car was back 200 feet (the place plaintiff claimed it was), when she first saw it, she was not guilty of con
“Q. How far out into Columbus avenue did you drive before you could see that car?.
“A. Well, I just got as far as the comer to look around, far enough to look around.”
If plaintiff was at the corner “far enough to look around,” it is manifest that she had reference to the street corner instead of the comer of the curb. While the surveyor locates some trees and telephone poles in Columbus avenue, plaintiff does not claim that they interfered with her vision in the slightest degree. So that upon the record before us when plaintiff had reached the point where she could “look around the corner” she was more than 18% feet north of the north rail; indeed she was 18% feet plus the distance the curb line was from the street line, 19 feet, or a distance of 37% feet. The track was a little over 4% feet wide. To reach a place of safety she would have to drive 42 feet in addition to the overhang of the car. Was the trial judge correct in holding and in •charging the jury that an automobile driver was guilty of contributory negligence who, when 37% feet from
“One portion of the charge complained of is as follows:
‘“(1) If you find that Horrigan was inattentive to the rate of speed at which the car was coming, that would be negligence on his part, as it was his duty under the circumstances to have noticed the speed at which the car was coming, as far as he could do so. It was Mr. Horrigan’S' duty to observe the speed of the car from the time he first saw it and up to the time he went onto the trade. Merely looking at the car once at a distance was not enough; he should have continued to observe the speed until he got to the track, and if he failed to do this, the plaintiff cannot recover.’
“That portion of the charge which appears in italics is attacked on the ground that it instructed the jury that the driver of the automobile was guilty of negligence if he did not continue to observe the street car from the time he first saw it until he went onto the track. The driver testified that, when within 5 or 6 feet of the east line of Grandville avenue, he first*7 saw the approaching headlight. He thought the car was then 200 feet away. He had to travel 6 feet to Grandville avenue and upwards of 24 feet beyond that to a place of safety. If, when he had gone half that distance, another observation had convinced him that it was dangerous to cross ahead of the car, it would have been his duty to stop. We think it can be said as a matter of law that, when an ordinarily prudent person is about to cross a highway, whether on foot (Zoltovski v. Gzella, 159 Mich. 620 [26 L. R. A. (N. S.) 435, 134 Am. St. Rep. 752]), on a bicycle (Measel v. Railway, 166 Mich. 688), or in a carriage or automobile, and he observes an approaching_ street car or any other vehicle which may obstruct his passage, he is watchful of it or them until he has passed the danger point and reaches a place of safety. As to whether he has done so in any given case is usually a question of fact to be determined from all the circumstances by a jury. But counsel argue that the rule laid down by the court is too strict, in that it placed the duty upon the driver to look continually at the car after he first saw it until the danger of collision was passed. A fair construction of the language means that it was the duty of the driver to continue his observation sufficiently after he first saw it to enable him to verify the safety of his decision, or to revise it if necessary to avoid a collision. This is a reasonable construction of the language used by the court, and is a reasonable requirement, and one usually followed by ordinarily prudent people when crossing the highway.”
In Colborne v. Railway, 177 Mich. 139, it was said by Mr. Justice Steers, speaking for the court:
“Before passing into the line of danger from his place of safety, where he had ample opportunity to observe without obstruction, it was his duty to assure and reassure himself ‘that there is not a car directly upon him, of which situation the fact that he is struck is conclusive proof/ ”
In Gillett v. Traction Co., 205 Mich. 410, it was said by Mr. Justice Kuhn, speaking for the court:
*8 “It was his duty, under the circumstances, not only to look, but to look just before entering the danger zone, so as to make sure that it was safe to cross the track. It is clear that if at this point he had looked, he would have realized the danger from the approaching car, which, under the testimony in this record, was then not to exceed 80 feet distant, and he would undoubtedly have made some effort to avoid the collision. The other alternative is that he did look, but carelessly and without any regard for his own safety drove upon the track. The inevitable conclusion to which all unprejudiced minds must come is that in either event plaintiff was clearly guilty of contributory negligence under the peculiar facts in this case, and that the trial judge was fully justified, and acted properly, in directing a verdict for the defendant.”
See, also, Geeck v. Luckenbill, 215 Mich. 288; Miller v. Railway, 200 Mich. 388; Borschall v. Railway, 115 Mich. 473; GibbsЅ v. Dayton, 166 Mich. 263; Lanier v. Railway Co., 209 Mich. 302; Groves v. Railway Co., 210 Mich. 409; Pershing v. Railway Co., 206 Mich. 304; Hardy v. Railway Co., 208 Mich. 622.
It is insisted that plaintiff honestly believed she could get across the track to a place of safety and that this should excuse contributory negligence. New people attempt to cross railroad tracks unless they honestly believe they will be able to reach a place of safety. It was said by Mr. Justice Hooker, speaking for the court in, Manos v. Railway, 168 Mich. 155:
_ “We have never held that one may safely rely upon his belief that he has time to cross, or that he may prudently take a chance, and it is only when, after satisfying himself by looking and ascertaining where the car is, he may in the exercise of common prudence reasonably think that he can proceed with safety, that a court or jury may find an absence of negligence. We have held this to be the rule repeatedly, and the learned circuit judge understood the cases and applied the right rule. To say that there is no negligence where one believes he can cross in safety, would send every*9 case to the jury, for we must presume that no one attempts to cross, doubting the safety of the attempt. But many are careless and absent-minded, and the question must turn on the reasonableness of the attempt to cross.”
Plaintiff was not called upon to act in an emergency. She was at a safe distance from the track, was driving for pleasure, could easily and with safety have turned west on Columbus avenue, or in an emergency could have turned east as there was no traffic coming from that direction. A jury has found that she was not entitled to recover. We have discussed fully the meritorious assignment of error relative to the charge. The charge was quite full and in it the rights of the plaintiff were carefully guarded and the correct rules of the law of negligence and contributory negligence were given to the jury. All of the assignments of error have been considered, and, finding no reversible error, the judgment will be affirmed.
