206 Mich. 304 | Mich. | 1919
Defendant’s line of railway extends from east to west through the village of Ovid and intersects Gratiot street at right angles. On Sunday, June 14, 1914, while plaintiff’s intestate, Girard B. Pershing, was driving north on Gratiot street, his Ford automobile came in contact with one of defendant’s locomotives, with the result that he was thrown therefrom and so badly injured that he died within a few hours. His, widow, as administratrix, brought this suit to recover damages, and at the trial relied chiefly upon the ground of negligence, that defendant was operating its train at an excessive and unlawful rate of speed and at a rate of speed in excess of eight miles per hour, the speed prescribed by the village ordinance.
At the trial, after plaintiff had placed before the jury her case, the trial court, upon motion, directed a verdict for defendant for the reason that neither of the grounds alleged by plaintiff was the proximate cause of the collision. In this connection the trial court stated:
*306 “It seems to the court that the proximate cause of this injury, the reason why he was injured, was the fact that he drove up so near the track "and stopped and remained there, just the same as though he had walked up in the same place and stood within 2 feet of the track, he would have been hit. He drove up within two feet and a half of the track and his automobile is hit, he stands there and he is thrown out and becomes injured and because of the injury he dies. So it would seem that the proximate cause of the injury would be the fact that he stopped in a place of danger and remained there.”
Plaintiff is here urging that the trial court was in error in controlling the verdict, that defendant’s and plaintiff’s negligence were questions of fact for the jury.
The testimony discloses that the station is located on the south side of the track, 267 feet east of the Gratiot street crossing. As plaintiff approached the crossing from the south his view of the track to the east was more or less obstructed, by the station house and other obstructions, until he reached a point 45 feet south 'Of the track. At this point he could see the track for 500 feet and upwards. Edward Beebe, who saw the accident, testified that when Pershing reached the 45-foot point, where he could see the track east of the station, he was running 8 or 10 miles an hour; that he looked to the west and afterwards to the east and at once applied his brake; that the automobile stopped very close to the south rail. At that moment the locomotive was within 30 feet of him and coming toward him at a rate of from 25 tc 40 miles an hour.
Had plaintiff’s intestate stopped, looked or listened when nearing the track, the accident would doubtless have been averted. Had he glanced to the east and applied his brake at any point 15 feet from the track, the collision could have been avoided, as a Ford dealer
But counsel argue that Pershing had a right to expect that the train was being operated in obedience to the ordinance, and if it had been so operated the accident would not have occurred. This may be so, but even if we concede that defendant was guilty of negligence, before plaintiff can recover, she must show that her intestate used reasonable care under all the circumstances to protect himself from injury. If he could have avoided injury by stopping, by listening, or by glancing to the east as soon as the obstructions would permit, and he failed to observe these duties, he did not use the care which an ordinarily prudent man does on such occasions.
Much reliance is placed by plaintiff upon the cases of Moran v. Railway, 124 Mich. 582, and Beck v. Railroad Co., 156 Mich. 256. In the Beck Case the plaintiff’s view was obstructed by box cars on the siding near. the crossing. Before attempting to cross he stopped, looked, and listened.
In the Moran Case the plaintiff observed the track for 40 rods and saw no car. In the present case had the plaintiff looked when at the 45-foot point he would have seen the train, because, under the facts as contended for by plaintiff, the train was only five times as far from the crossing as plaintiff’s intestate was. That would bring the locomotive only 225 feet away from the crossing. Both of the cases cited are easily distinguishable from the present one, not only as to
We are unable to agree with the trial court that plaintiff was guilty of contributory negligence because “he drove up so near the track and stopped and remained there” until struck. The evidence shows that plaintiff stopped his car as soon as he could after he decided to stop and it is evident that after the car stopped he did not have time to back away from the track before being struck. Plaintiff’s negligence was anterior to those acts and lay in his failure to observe the precautions while in a place of safety which are ordinarily observed by one approaching a railway track. We agree, however, that the trial court reached the right conclusion.
The judgment must be affirmed.
