158 Mich. 552 | Mich. | 1909
The defendant’s local freight train No. 66 stood upon the track of the defendant about three car lengths west of Broadway street crossing in the city of Grand Rapids. The deceased was riding with Mrs. Rademacher and Mrs. Josephine Schmidt in an open seated buggy. The horse was being driven by Mrs. Rademacher, and was gentle. Broadway crosses defendant’s track at an angle; the distance between the rails — that is, the traveled portion of the street — being 11 feet. The street is wide and level between defendant’s track and the street car track. Gates are maintained at Broadway.
As the driver approached Broadway with her horse, she discovered, that the gates were up, and saw the engine standing still at the point stated. Mrs. Rademacher testifies : That after she looked and saw that the train was standing still she drove on. The horse was walking.
The case was submitted to the jury, with the result of a verdict for the plaintiff. The case is brought here for review, and four errors are relied upon:
First. That the circuit judge erred in submitting to the jury the question of negligence in permitting the escape of steam from the engine.
Second. That the plaintiff’s decedent was guilty of contributory negligence, as a matter of law, and that it was therefore error to submit the case to the jury.
Third. That the fact that the crossing gates had not been lowered was not the proximate cause of the injury.
Fourth. That the judge erred in his instructions to the jury, the claim being that the instructions were inconsistent and contradictory as bearing upon the effect of the failure to lower the gates.
It is the contention of the defendant that there is no testimony that raises a question of fact for the jury to say whether defendant was negligent in causing or permitting the engine to emit steam, for the reason that there was no proof that there was an unusual or unnecessary amount of steam emitted. We do not so read the record. Mrs. Rademacher testified that, when the horse got over the track, he was scared. “ The steam blew off, the steam on both sides, and that scared the horse.” Mr. Tanner,
“ Their purpose is to let the flush off from the wings of the cylinder.”
In answer to the question: “ When steam is let off at that point, in what way does it escape ? ” he replied:
“ It escapes through the steam cocks at the lower side of the cylinder at each side of the engine.
“Q. And can it escape through there excepting when the steam is turned on ?
“A. It cannot, sir. I observed this engine as it started up. I don’t think that when it first started there was any steam escaping from the steam cocks. I later discovered steam escaping. The engine was about half way between the starting point and the crossing when I discovered steam escaping from the steam cocks. The steam made a whistling and sissing noise. It was somewhat loud.”
The testimony of defendant’s witness was that steam of no consequence would escape from cylinder cocks unless they were open; that this would be accomplished from the inside of the engine cab; that, if it was desired to get rid of the condensed water, the steam cocks would be opened, and this would let the steam and water escape; that the engine was working hard and made quite a noise. It is true that this witness testified that, the steam cocks were not open, but we think it was a question for the jury as to whether they were or not. It was also a question for the jury as to whether, in a situation in which this horse was at the time — as it appears that the steam emitted would come out directly in front of the horse and be likely to cause fright — it was a negligent act. See Geveke v. Railroad Co., 57 Mich. 589 (24 N. W. 675); Hinchman v. Railroad Co., 136 Mich. 341 (99 N. W. 277, 65 L. R. A. 553); Foster v. East Jordan Lumber Co., 141 Mich. 316 (104 N. W. 617).
We think it very clear that it cannot be said, as a matter of law, that the deceased was guilty of contributory negligence. When she approached this crossing, she found the
It is suggested that the fact that the crossing gates had not been lowered was, under the plaintiff’s theory, not the proximate cause, and in the same connection error is assigned upon the instructions relating to this fact, as follows:
“ Another negligent act complained of is that defendant failed to lower its safety gates as the engine was started and about to proceed over the crossing. This is one of defendant’s duties. You will remember the testimony, and, if you find that the gates were not lowered you may consider it as bearing on the matter of negligence, both the alleged negligence of the defendant and contributory negligence.
“Now, something has been said by counsel that that was immaterial whether the gates were up or down, under the circumstances of this case; but, of course, if having an unobstructed view of the engine she saw it, or should have seen it moving towards her, or towards the crossing before she went upon the track, it would make no difference whether the gates were up or down. She would have no right under such circumstances to attempt to cross. If the engine was standing still, the position of the gates would be immaterial, for, if the engine was standing still and the gates were up, she would have reason to believe there would be no danger in making the crossing.”
We find no reversible error, and the judgment will be affirmed.