Molby v. Detroit United Railway, 221 Mich. 419

221 Mich. 419 | Mich. | 1922

Fellows, C. J.

(after stating the facts). This case does not fall within that line of cases where plaintiff saw the car or train approaching and in the exercise of reasonable prudence concluded that he could cross with safety. Plaintiff does not claim such a state of facts as to bring himself within that line of authorities. The case falls within that line of cases' where the undisputed physical facts established by plaintiff’s testimony demonstrate that had plaintiff looked with the slightest degree of care he could not have failed to see the approaching car or train, where the undisputed physical facts established by uncontradicted testimony demonstrate that either (1) plaintiff did not look, or (2) looked so indifferently as not to see a car in plain sight. The instant case can not be distinguished from but is controlled by Champaign v. Railway, 181 Mich. 672. In that case both plaintiff and her husband claimed to have looked, but the undisputed physical facts established by their testimony demonstrated that at the rate the car was running they could not have failed to see it had they looked. It was there said by Mr. Justice Steere, speaking for the court:

“In the face of such unquestionable evidence, and particularly in the absence of evidence that the car was running at excessive speed, it cannot in reason be said that plaintiffs’ testimony that they looked or listened, and did not see or hear the car, raises an issue for the jury. The car came to that point running along the track. Had they looked to the extent and at the time the law requires, they could and must have seen it. The physical facts which they themselves testify to negative their own testimony to the contrary.”

See, also, Manos v. Railway, 168 Mich. 155; Weil v. Railway, 186 Mich. 614; Lanier v. Railway Co., 209 Mich. 302; Pershing v. Railway Co., 206 Mich. 304; Davis v. Railway, 162 Mich. 240; Apsey v. Railroad Co., 83 Mich. 432. The rule announced in the Champaign Case is applicable to the facts in the instant case. It has been adopted by this court and is the only safe rule unless we desire to put a premium on perjury.

We do not perceive that the question of discovered negligence was urged in the court below, nor does the testimony take that question to the jury. Baker v. Delano, 191 Mich. 204; Wortman v. Railway, 218 Mich. 119.

The judgment will be affirmed.

Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.