121 Mich. 498 | Mich. | 1899
On the 15th day of September, 1897,
Two grounds of recovery are urged in this court: First, that defendant’s employés were guilty of gross and wanton negligence in running down the plaintiff, such as to excuse contributory negligence on the part of the plaintiff if the jury should find such negligenceand, second, that the flagman was guilty of negligence in failing to warn plaintiff of the approaching hand-car, and that the plaintiff, having the right to rely upon the flagman to give him warning, was not guilty of negligence in failing to look before stepping in front of the hand-car.
1. The evidence shows that the plaintiff, while pursuing his course near the track, was 8 to 10 inches from the rail, and there is no testimony that the hand-car had any overhang. It is asserted by defendant’s counsel that, as a matter of fact, there was none, and it is not claimed by plaintiff’s counsel that there was. He was then in a place of safety, if he pursued the course he was in when discovered by defendant’s servants. We think negligence cannot be imputed to defendant’s servants in not knowing of plaintiff’s deafness, and in not assuming that he would ignore the warning given him. In this respect the case is quite similar to Bouwmeester v. Railroad Co., 67 Mich. 90. See, also, Fritz v. Railway Co., 105 Mich. 54.
2. Was it the duty of the flagman to give warning? It seems to us that this question is governed by the same considerations which rule the former.. Assuming that the flagman saw the approaching hand-car, and that he saw plaintiff approaching along the track, and that he heard
Judgment affirmed.