120 Mich. 115 | Mich. | 1899
Lead Opinion
(after stating the facts). The'rights and duties of a traveler upon a bicycle, when approaching a railroad crossing, are before this court for the first time. These rights and duties must be determined without reference to the distressing result of this accident to the plaintiff. The learned counsel for plaintiff, in his argument, conceded that it was the duty of the plaintiff to exercise a high degree of care. Manifestly, this was his duty because of the danger to which he was exposed. Did he,
injured, he could not recover. Gardner v. Railroad Co., 97 Mich. 240; Brandy v. Railway Co., 107 Mich. 100.
We are cited to but one case involving the duty of the bicyclist in crossing a railroad upon the public highway. Robertson v. Railroad Co., 180 Pa. St. 43 (57 Am. St. Rep. 620). In that case the bicyclist, instead of dismounting, rode around in a circle in the street, waiting for a train to pass. In endeavoring to cross, he was struck by a train upon another track and killed. In that case the obstruction was a tool-house standing seven feet from the track. The court said :
“ The law requires a full stop, not only for the sake of time and opportunity for observation, but to secure undivided attention, and the substantial, and not mere perfunctory, performance of the duty to look and listen. Riding round and round in large circles or small circles,*121 waiting for a chance to shoot across, is not a stop at all, either in form or substance. Considering the ease of dismounting and the control of the rider over his instrument, a bicycler must, under all ordinary circumstances, be treated as subject to the same rules as a pedestrian.”
If a person is required to stop his team and listen in cases where he cannot see, why should not the bicyclist, when his view is obstructed to within a few feet of the track,' be required to dismount and ascertain the situation ? It is no more trouble for him to dismount than it is for the driver to stop his team and listen. The delay is no longer; the trouble is no greater. In some States the question of contributory negligence is eliminated by statute, and the railroad made liable for damages in every case where it fails to give the statutory signals; but that is not the law in this State. If the plaintiff was going, as he testified, “at a gait that I could just keep on it nicely, so that I could see or hear if anything was in the way of my crossing there in the shape of trains,” it is difficult to understand how the flash of the headlight and the collision occurred the instant he came in sight of the train. It is further more difficult to understand how, if he struck the side of the engine, his bicycle was found upon one side of the track and he upon the other. This condition can he accounted for upon no other theory than that he was in front of the engine when he was struck. Cars cannot stop instantly. Engineers and firemen do not always perform the duties imposed upon them in giving the signals. While the presumption may be that they do, human nature is not yet so perfect that every one performs his duty. To sustain the plaintiff’s right of action would be to hold that he has the right to rely absolutely upon the performance of this duty by the trainmen, and that he may ride along regardless of consequences, and rely upon the absolute performance of this statutory duty. Ordinarily, this train could be heard when coming a long distance away. Ordinarily, the light from the headlight would be seen shining upon bodies in front of
No one will contest the proposition that a traveler, in the exercise of due care, is entitled to rely on the statutory warnings. But the troublesome.question always is, Was the traveler exercising such care? When the'facts are undisputed, and are such that different conclusions cannot reasonably be drawn, the question is one of law for the court. It seems to us only common sense that he, in crossing a place the very existence of which is notice of danger, should stand in no better position than a pedestrian. In a second he can become a pedestrian, and in a second or two more place himself in position to know whether there is danger. If there is no danger, he can mount, and proceed with the delay of only a few seconds. If there is danger, he can avoid it. We think the law requires that he should take this precaution, and does not permit him to rely solely upon his sense of hearing and the performance of duties imposed upon others. Is it not common prudence for one, in entering a dangerous place, to take that course which involves no inconvenience, delay, or trouble to himself, and which will, if followed, insure his own safety as well as that of others ? If it is, the law requires him to take it.
The plaintiff in this case was in a better position to pro
We are of the opinion that the circuit judge was right in directing a verdict.
Judgment affirmed.
Dissenting Opinion
(dissenting). I cannot agree with the conclusion reached by the Chief Justice. I do not think Gardner v. Railroad Co., 97 Mich. 240, and Brandy v. Railway Co., 107 Mich. 100, apply to this case. The plaintiff in each of those cases was upon foot, and in each instance, if he had looked, would have had abundant opportunity to see the danger when he was yet in a place of safety. Not only have pedestrians the right to pass in the public highway, but persons, riding in carriages and wagons and upon bicycles. What would be reasonable care in a prudent person riding in a wagon might not be reasonable care in a prudent person riding upon a bicycle. What would be reasonable care in the case of a prudent bicycler might not be reasonable care in a foot passenger. It is true a railroad crossing is a place of danger, and one may not cross it recklessly or negligently. He must, if he would be protected, exercise such reasonable care as an ordinarily prudent man would exercise under like circumstances. In the case of a foot passenger, the courts say, if he has an opportunity to look and listen after passing the obstruction, and while in a place of safety, he is guilty of contributory negligence if he fails to do so. The courts
In the case at bar the record shows Dr. Lau approached the crossing appreciating it was a place of danger. He ran his wheel as slowly as possible and have it stand' up. He looked and listened. There was a curve in the track. His line of vision after passing the obstruction, one witness states, would not reach more than 25 feet down the track. The night was still. What little wind there was came from the southeast. Dr. Lau was going north. He listened, and heard nothing. The record discloses testimony tending to show the train was coming from the east at the rate of 12 miles an hour, making a flying switch. The steam was shut off from the engine; no bell was rung; no whistle blown; no warning given; no watchman, gate, or lights at the crossing. It was very quiet. As Dr. Lau passed the obstruction to his line of vision, he was instantly struck, receiving injuries resulting in the amputation of one of his feet, and other permanent disabilities. 3 How. Stat. § 3375, requires a bell and a steam whistle upon each locomotive engine, and that the bell shall be rung continuously, and the whistle twice sharply sounded, at least 40 rods before the crossing is reached, and makes the company liable for all damages which shall be sustained by any person by reason of such neglect. The testimony of the plaintiff is to the effect that the bell was not rung and the whistle not blown.
" The law is therefore well settled that a traveler upon the highway has a right to assume that a railway company will thus perform its statutory duty, and one on a highway, when he approaches a railroad crossing, and can neither see nor hear any indications of a moving train, is not chargeable with negligence for assuming that there is no train sufficiently near to make the crossing dangerous. One in such a position has a right to assume that a railroad company, in handling its cars, will act with appropriate care, and that the usual signals of approach will be reasonably given.”
In the opinion written by Justice Montgomery it is said:
“The statute imposes a positive duty upon the railroad company to sound its whistle and to ring its bell at a certain point. It is a well-known fact that not only those about to cross the railroad track, but those in the immediate vicinity, lawfully there, are frequently induced to rely upon the performance of this statutory duty. If they do so, and without fault of their own suffer an injury, we see no reason why the statute should not be so construed as to protect them.”
See, also, Guggenheim v. Railway Co., 66 Mich. 150; Richmond v. Railway Co., 87 Mich. 380; Van Auken v. Railway Co., 96 Mich. 307 (22 L. R. A. 33).
The case of Robertson v. Railroad Co., 180 Pa. St. 43 (57 Am. St. Rep. 620), is cited as supporting the disposition made of the case by the circuit judge. This court has not been inclined to follow the Pennsylvania courts in negligence cases, but, if it were so inclined, the facts in the Pennsylvania case are so different from the case at bar that its decision is not controlling. The deceased in that case was traveling upon a highway which- crossed four railroad tracks. As he approached the crossing, a freight train was passing upon one of the tracks nearest to him. He
Men and women riding bicycles have the same right to use the highways which is accorded to pedestrians and to persons riding in carriages. It is their duty to recognize that railroad crossings are places of danger, and must be approached with care. They have a right to expect the employés of the railroad company will comply with the provisions of the statute, but this right of reliance will not excuse them if they are heedless and negligent. It is their duty to exercise such reasonable care as an ordinarily prudent person would use under like circumstances. •If, when they are doing this, they are injured, because of the failure of the railroad company to ring the bell and blow the whistle, the railroad company is liable for the damage done to them. Whether in this case the plaintiff approached the crossing in the exercise of such reasonable care as a person of ordinary prudence would use under like circumstances was, we think, a question which should have been submitted, to the jury. Carver v. Plank-Road Co., 61 Mich. 584; Little v. Railway Co., 78 Mich. 205; Breckenfelder v. Railway Co., 79 Mich. 560; Richmond v. Railway Co., 87 Mich. 374; Rascher v. Railway Co., 90 Mich. 413 (30 Am. St. Rep. 447); Ashman v. Railroad Co., 90 Mich. 567.
Judgment should be reversed, and a new trial ordered.