191 Mich. 181 | Mich. | 1916
The accident which gave rise to this litigation occurred on June 28, 1913, on Michigan avenue, in the township of Dearborn, Wayne county. Michigan avenue is paved with concrete at this point, and lying immediately north of the concreted way, parallel thereto, and about three feet distant therefrom, is the track of the defendant railway company. Both the highway and the track are straight for a considerable distance east and west of the scene of the accident. The plaintiff was riding with her mother, Caroline Walter, who was driving a horse and a light market wagon, going in a westerly direction on the north side of the concreted highway. Approaching from the west, at a very rapid rate of speed, and likewise on the
The plaintiff’s counsel served a subpoena on the motorman, and he was put on the stand in support of the plaintiff’s case. After he had been asked a few preliminary questions, plaintiff’s counsel announced that the witness was called under Act No. 307, Pub, Acts 1909 (3 Comp. Laws 1915, § 12554), and defend
The motorman testified that when he first saw the horse turn on the track, it was between 300 and 400 feet away, and that he immediately shut off the power and applied the brakes, which were in good working order, but did not use sand nor reverse his motor. He claimed that what he did was all that could be done to bring his car to a stop in the shortest possible distance, under the conditions which prevailed that day, and that the car went about 100 feet after it struck the horse before he brought it to a stop. He further testified that at the rate the car was going (between 35' and 40 miles an hour) he was able to stop the car within 400 feet.
The plaintiff’s mother testified that when the horse got on the track she judged the car was between 700 and 800 feet-away. She was also asked the following question: “From the time you saw the street car up to the tiriie it hit your horse, did it slacken its speed at all?” and made answer, “Never.” This answer was objected to on the ground that it was not shown that the witness had any opportunity of observing. The
If the jury accepted the testimony of the plaintiff’s mother rather than the testimony of the motorman, it seems clear that the motorman, under his own testimony as to the distance in which he could stop the car under the conditions prevailing, could have effected a stop in time to avoid collision. The learned trial judge, in denying a motion for a new trial, said:
“This collision occurred on a track at a point where a clear and unobstructed view could be had for a distance practically as far as the eye can see along a highway.^ There was nothing to prevent the motorman having a view of the horse from the moment it entered upon the street railway tracks. If then a space of 700 to 800 feet intervened from the place where the horse jumped upon the tracks, and the position occupied by the car at that precise moment, the question arises, does the record, as it now stands, show that the motorman could, and should, have brought his car to a stop within that distance in time to have avoided a' collision? Giving him the benefit of the maximum distance which he says his car traveled before he could effect a stop by using all means at his command so to do, there remains a space of at least about 150 feet which might have been utilized in the endeavor to stop the car, and which would appear not to have been availed of if the plaintiff’s theory is accepted.”
“It is gross negligence where the wrongdoer, by the exercise of the most ordinary care, should have known of the precedent negligence of the plaintiff and of his peril, and subsequently does him an injury. Baldwin on Personal Injuries, § 138. Gross negligence, therefore, may be: (a) A deliberately wilful act; (6) an act so reckless as to be akin to wilful, and therefore presumed dn law to be wilful; (c) a failure to exercise ordinary care to prevent injur^ to another, after his peril is, or should have been, discovered in the exercise of ordinary care. Such failure to exercise ordinary care to prevent injury is so reckless that the law presumes it to be wilful; wilfulness or deliberate intent may be inferred from all of the circumstances.”
We think that the facts clearly presented a question for the jury, under the authorities. Laethem v. Railway Co., 100 Mich. 297 (58 N. W. 996); McClellan v. Railway Co., 105 Mich. 101 (62 N. W. 1025); Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139) ; Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703) ; Quirk v. Railway, 130 Mich. 654 (90 N. W. 673) ; Boettcher v. Railway Co., 131 Mich. 296 (91 N. W. 125); Bedell v. Railway, 131 Mich. 668 (92 N. W. 349); McVean v. Railway, 138 Mich. 263 (101 N. W. 527) ; Ablard v. Railway, 139 Mich. 248 (102 N. W. 741); Morse v. Railway Co., 168 Mich. 99 (133 N. W. 935); Hibbler v. Railway, 172 Mich. 368 (137 N. W. 719) ; Good Roads Construction Co. v. Railway Co., 178 Mich. 1 (138 N. W. 320) ; Weitzel v. Railway, 186 Mich. 7 (152 N. W. 931); Huff v. Traction Co., 186 Mich. 88 (152 N. W. 936); Millette v. Railway, 186 Mich. 634 (153 N. W. 10).
It is also claimed that a verdict should have been directed because the negligence of the defendant was not the proximate cause of the plaintiff’s injury. In
“When a particular consequence results from a wrong, it may be said that the wrong is the proximate cause of that consequence, unless there intervenes between the wrong and said consequence something which may properly be denominated a cause. If such cause intervenes, it may be said that the wrong of the defendant , is too remote to be made the basis of an action. It is in such a case a condition and not a cause.”
It is clear that in the instant case the alleged negligence of the defendant’s motorman intervened between the scaring of the plaintiff’s horse by the automobile and the injury, and must therefore be said to have been.properly denominated the cause of the accident.
An examination of the charge of the court shows that the theories of the parties were, clearly presented to the jury, with proper instruction as to the law, and we are not' convinced that there was any error committed. We are also convinced that there was sufficient evidence to sustain the verdict, and that it was not error for the court to deny the motion for a new trial, made on the ground that the verdict was contrary to the weight of the evidence.
Judgment is affirmed.