185 Mich. 632 | Mich. | 1915
The plaintiff brought this suit to recover damages for personal injuries to himself and also to his wife and child, at a railroad crossing in the unincorporated village of Bridgman, on September 19, 1913. The court below directed a verdict and judgment in favor of defendants. Plaintiff asks us to reverse that judgment, contending that his testimony made a case entitling him to the judgment of the jury. We state the testimony, placing upon it, as we should, the construction most favorable to the plaintiff. The plaintiff, his wife, and a child seven years of age, were injured by a collision between one of defendants’ work trains and an automobile in which plaintiff, wife, and child were riding across the track of the Pere Marquette Railroad Company, in said village, about 10 o’clock in the forenoon. The village had but one main street or highway, which extended east and west, and which furnished the only entrance to the village, and was quite extensively traveled, as the village was the shipping point of fruit raised in the neighborhood. On account of the village’s proximity to Lake Michigan, the general travel was from the east into the village. The defendants’ railroad crosses this main highway at the easterly side of the village, and was composed of one main track, a side track on the west of the main track, and a blind or stub track on the east of the main track and south of the highway, ending near the south sidewalk. The depot was about 40 feet south of the highway, and on the west side of the main railroad track and east of
In taking the case from the jury, the trial court said:
“This train was running wild; that is, it was not a scheduled train.”
“It was an inclosed Studebaker car. The sides of the car were covered. I can’t tell you exactly how deep the seat of the automobile was, but it was a little bit more than 16 inches. The top of the car extended over the windshield. In order to see out of the car you would not necessarily have to lean forward and get your face a little past the side of the car, because there were windows that we could see through. The top bent down toward the engine. There were windows on each side that we could see through. A person driving could look out of the windows either way and see.”
On the cross-examination of the plaintiff the following testimony was given:
“Q. Did you stop your own car?
“A. Not entirely; nearly so.
“Q. You did not stop?
“A. Not to a dead stop.
“Q. So you could ascertain if there was a train coming?
“A. If the train—
“Q. Answer the question. Did you stop your car when you saw a car standing on the switch track, so you could ascertain a train was coming?
“A. I did not stop the car after — we had listened for a whistle or some signal to notify us that there was a train coming; while we had been watching and listening, we received no warning or signals of any sort of danger approaching; while we had slowed down, and going slow enough so as to see and hear, there was no signal or sound given us.
*638 “Q. You did not stop, did you?
“A. We did not stop — full stop.
“Q. You did not stop so you could make sure?
“A. We stopped so we could be reasonably sure.”
The automobile was struck midway, while upon the track, by the backing train, and carried before the train a distance of 530 feet before the train stopped. The automobile was ruined, and the plaintiff and his wife received serious, and it was claimed permanent, injuries from the collision. The testimony being closed on the part of the plaintiff, a motion was made by the defendants for a directed verdict in their behalf, upon the ground that the plaintiff was guilty of contributory negligence, as shown by the testimony in his behalf. The trial court granted the motion, and held that the plaintiff was guilty of contributory negligence, as matter of law, for failure to come to a full stop before reaching the track, and directed a verdict of no cause of action. An examination of the charge discloses that in the opinion of the trial court the case was ruled and governed by Shufelt v. Railroad Co., 96 Mich. 327 (55 N. W. 1013).
The main question raised and argued by counsel is, Was the trial court justified, as matter of law, in holding that, under the circumstances of this case, it was imperative upon the plaintiff to come to a full stop, before attempting to cross the railroad in question?
The plaintiff’s claims are:
First. That under the circumstances of this case the plaintiff was entitled to have his case submitted to the jury, on the question of contributory negligence, under proper instructions.
Second. That if plaintiff was guilty of contributory negligence in crossing defendants’ track without first coming to a full stop, yet the plaintiff is entitled to recover, as the facts shown at the trial established gross and great negligence on the part of the defendants in the backing of their train, with the engine in*639 the rear, and consisting of 22 cars, at such a high rate of speed, over the highway in question, and without giving any signal or warning whatever of its approach.
We will discuss these claims in the inverse order in which they are presented. Under the more recent holdings of this court upon the question as to what constitutes gross and wanton negligence, we are unable to agree with appellant that the defendants were guilty of such gross negligence in the operation of the train which collided with plaintiff’s automobile as would authorize recovery, notwithstanding the contributory negligence of the plaintiff. Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504); Putt v. Railway Co., 171 Mich. 216 (137 N. W. 132). That such manner of operating a train would be negligence, and was the proximate cause of the injury, were questions which might, in our opinion, have been 'properly submitted to the jury. It is not seriously claimed by defendants that the train was not operated in a negligent manner, but it is said that the failure to blow the whistle or ring the bell, even in connection with the backing of the train and the failure to have a man stationed upon the first car as a lookout, did not constitute the proximate cause of the plaintiff’s injury, but that the proximate cause was plaintiff’s failure to come to a full stop before attempting to cross the track. Can this be said as matter of law? Plaintiff had a right to expect that defendants’ trains would be operated in a lawful manner. We think that the controlling question is whether the conduct of the plaintiff was that of a reasonable man, under the circumstances. Did the plaintiff conduct himself as a reasonably prudent man would have acted, while rightfully expecting the defendants to handle their train in a lawful manner? These, it seems to us, were questions for the jury. If
In our opinion, the Shufelt Case is not controlling here. In that case the plaintiff’s wife was driving in a lumber wagon with a box, and the road was dry and hard, so the noise of the horses and wagon traveling over a hard road was great. She did not listen for any train or signals. It was a regularly scheduled passenger train, somewhat behind time, crossing a highway in the country, where travel was limited, and the signals were given both by bell and whistle. In the instant case the plaintiff was driving slowly, in an automobile, the engine of which was making a very slight noise. Plaintiff was constantly looking and listening for a train. He had just seen the regular passenger train go north, and the collision resulting in his injury was caused by what the trial court called a “wild train,” consisting of 22 cars, with the engine placed in the rear. No signal by either bell or whistle was given, and in fact no proper signal could be given from the engine while in the rear of such a long train. A high rate of speed was used by the backing train over a highway where there was much traffic, and no lookout was placed on the approaching train. Whether this combination of facts might not rightfully lead the plaintiff to believe that he was safe in attempting to make the crossing, was, in our opinion, a question for the jury. Where different conclusions may be drawn from established facts, the question belongs to the jury. Beck v. Railroad Co., 156 Mich. 252-258 (120 N. W. 983). If,
“Ordinarily, when a traveler drives upon a railway track without stopping to listen, where his view is obstructed, and in consequence thereof he is injured, he is, under the law, guilty of contributory negligence, but the rule * * * is not imperative under all circumstances.”
The above is the latest expression of this court upon the subject. Morgan v. Railroad Co., 162 Mich. 573-576 (127 N. W. 683). In that case Chief Justice Bird also said:
“Viewing plaintiff’s conduct in connection with the surroundings and the conduct of the defendant in operating its train without a headlight or lookout, we are unable to say, as a matter of law, that plaintiff so far contributed to his own injuries that it will preclude recovery. The plaintiff testified, and his testimony is corroborated by two witnesses, that his horse was walking very slowly when he approached the main crossing as well as the other crossings. He looked and listened at each of the crossings. He understood that a train ran in the early morning, conveying the miners to their work, but he had never seen it at this crossing and was not expecting it.”
If the rule above stated could be applied when a train was on its regular morning trip, may it not be applied in the instant case, where no train was scheduled or expected? We think so. This court has recognized various exceptions to this general rule of requiring the traveler to stop before making the cross
We are of the opinion that the trial court erred in not submitting to the jury the question of the claimed contributory negligence of the plaintiff, under proper instructions.
The judgment of the circuit court is reversed, and a new trial granted.
I think the court below was right, and that the judgment should be affirmed;