233 N.W. 400 | Mich. | 1930
Plaintiff, September 15, 1925, was about 10 years of age. He was struck by a car belonging to defendant, knocked down, his leg run over by the car and crushed. Plaintiff sues by his next friend to recover damages for his injuries.
Defendant was, at the time of plaintiff's injury, engaged in paving Hasse street in Detroit. In preparation for its work of laying concrete it built and operated a narrow-gauge railroad in the street to handle cement from the concrete mixer to the point of use. The cars were small, similar to those used in industrial work of this kind. They had no brakes. Defendant, recognizing their dangerous character, gave orders that such cars when not in use were to be chained to the track. Defendant's employees at the time of plaintiff's injury were not engaged in using the cars, which were left standing unfastened on the tracks in the street. The children in the neighborhood congregated about them, moving them about in play as they had repeatedly done prior to plaintiff's injury. Though the street was closed to vehicular traffic and barriers erected, the *519 sidewalks of the street were in use. Plaintiff lived in the immediate vicinity. At the time in question he attempted to cross the street to go to a nearby grocery store on an errand. As he crossed defendant's tracks in the street back of a standing car, another car was shunted down by the playing children and bumped against the standing car, and by the sudden movement of the car which had been standing, plaintiff was knocked down and injured. The trial court directed a verdict for defendant, and plaintiff brings error. Two questions are presented: Was defendant under the circumstances guilty of negligence? If so, was the plaintiff guilty of such contributory negligence as to bar his right to recovery?
We think this case distinguishable from Kaumeier v. RailwayCo.,
Plaintiff was not a trespasser. He was in the public street, and he was not meddling or wrongfully interfering with any of the defendant's property. Kruis v. Railway Co.,
WIEST, C.J., and BUTZEL, CLARK, McDONALD, SHARPE, NORTH, and FEAD, JJ., concurred.