171 Mich. 216 | Mich. | 1912
(after stating the facts). It is the position of defendant that, under the testimony in this record, a verdict should have been directed for the defendant. It is not disputed that the speed of the engine was not greater than six miles per hour, nor that the bell upon the engine was constantly ringing as it approached the crossing where plaintiff received his injury. There is no dispute as to the actions of the engineer or fireman immediately before the accident. The engineer testified that, from his proper position upon the easterly side of the engine, he kept such lookout as was .possible from his point of view, while the fireman was engaged with his particular work— that of shoveling coal. As the engine approached Second avenue from the north, the engineer’s line of vision would gradually be cut off by the tender, so that, when 200 or 300 feet from Second avenue, he would be unable to see a man standing nearer the westerly rail of the track than the easterly rail, the position which plaintiff asserts he occupied while standing upon the track. He testifies that he never saw the plaintiff, and did not know that his engine had injured any one until he reached the B. O. tower, some distance south of Second avenue.
But, assuming that the engineer saw plaintiff standing upon the track 200 to 300 feet away, at the rate of speed at which he was traveling it would take at least 30 seconds to travel this distance, while the plaintiff could step off the track and reach a place of safety in the fractional part of a single second. With the bell sounding a constant warning, with no notice of plaintiff’s infirmity, and considering his rate of travel, we are of opinion that the engineer would have had a right to presume that the plaintiff would step off the track before the engine reached him, and that the engineer would not have been guilty of even ordinary negligence in continuing upon his course upon that assumption.
It is said by the plaintiff that the watchman was not there. It is clear from the testimony of plaintiff’s witness
“ Q. When you looked for the crossing tender, you did not find him; did you think he was there, or did you think he was not there ?
“A. I knew nothing about that, but I think he was not there at his place to watch the crossing; I didn’t know where he was, but he was not there.
“Q. Then, when you looked up for him and did not find him there, why did you stand on the track with your back to the north, depending on the crossing tender doing his duty to warn you ?
“A. Because I was not expecting any danger. There was nobody there to warn me if there was anything coming, and the time was only of a few seconds’ duration that I stopped.
“Q. You knew it was more dangerous for you to stand on the railroad track than for a man that could hear ?
“A. Yes, sir.
“Q. And you did not hear anything until this engine was right on you ?
“A. Sir?
“Q. You did not hear anything until this engine was right on you ?
“A. I did not hear the engine at all. when I saw it.
“Q. The only thing that warned you that it was going was you turning around and' seeing it ?
“A. Sir?
“Q. You had no warning it was coming until you turned and saw it ?
. “A. I had no warning at all, in no way, either by the watchman or by sound.
“Q. And then you said it was within about six feet of you?
“A. I should judge it was that close to me when I first saw it.
“Q. Did you have time to examine the end of the tender to see what was on it ?
*227 (CA. I did not nave any more time than just to glance over the back of the engine and to try to get out of the road.
“Q. And you made a jump, you said, backward ?
“A. Sir ?
“Q. You jumped backward, you said?
“A. I jumped backward to get off the track.
“Q. In other words, you jumped toward the west?
“A. I jumped toward the west, yes.”
This court has held that; where plaintiff’s negligence contributed to his injury, he cannot recover “without intentional wrong ” on the part of the defendant. Williams v. Railroad Co., 2 Mich. 259 (55 Am. Dec. 59). “Without wanton or intentional wrong.” Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274. “Unless the defendant was guilty of such reckless and wanton negligence ” as would acquit the plaintiff. Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 872, 3 L. R. A. 594). “Gross negligence” means “the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another. It also implies a thoughtless disregard óf consequences, without the exercise of any effort to avoid them.” Schindler v. Railway Co., 87 Mich. 400 (49 N. W. 670). See, also, Richter v. Harper, 95 Mich. 221 (54 N. W. 768); La-barge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073); Buxton v. Ainsworth, 138 Mich. 532 (101 N. W. 817, 5 Am. & Eng. Ann. Cas. 146); Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504); 29 Cyc. p. 507.
Applying the definitions and principles laid down in the foregoing cases to the facts in the case at bar, we are of opinion that there was no evidence in the case which warranted its submission to the jury upon the question of defendant’s gross negligence.
The judgment is reversed, and no new trial is granted.
