151 Mich. 684 | Mich. | 1908
(after stating the facts). The two boys were trespassers upon the track. They knew that they were. They were familiar with the defendant’s road, the funning of its cars, and the danger incident to walking on its track. They knew that it was about time for this car to pass. Counsel for plaintiff upon the trial conceded that “the motorman did not intentionally run into the boys.” The claim then was that the motorman did not see when he should have seen, and that this was gross negligence. The same counsel in their brief now assert that he “deliberately drove his car with an utter disregard of consequences against them.” It is sufficient to shy that the record is barren of any evidence upon which such an assertion can be based. The motorman was under no obligation to keep a lookout for trespassers. His legal duty was to sound his gong or blow his whistle when he saw the boys on the track, and to take all precautions possible to stop his car when he discovered that they were not aware of his approach. That he did this, is conclusively established.
It was the duty of the deceased, first, to keep off the track, and, second, when on it, to keep a careful watch behind him. A glance in time would have revealed to him the situation and have enabled him to step off the track which he could have done in a second of time. Under plaintiff’s contention the same watchful care would be required to protect trespassers as those who are rightfully on the tracks at crossings and in streets and highways. The case is ruled by Trudell v. Railway Co., 126 Mich. 73 (53 L. R. A. 271); Buckley v. Railroad Co., 119 Mich. 587; Buxton v. Ainsworth, 138 Mich. 537.
Judgment affirmed.