Docket No. 86 | Mich. | Dec 30, 1909
(after stating the facts). Plaintiff’s principal allegation of negligence is based upon the fact that the car which struck plaintiff’s decedent did not stop at the westerly side of the boulevard, in violation of its. duty so to do. It was the claim of plaintiff that decedent
Three grounds for reversal are urged by defendant:
First. That the plaintiff has selected the wrong remedy. The action is planted upon the so-called “death act” (3 Comp. Laws, § 10427), and defendant contends that as, under the undisputed testimony, plaintiff’s deceased continued to live for some 15 minutes after he was struck, though he was dead when taken from beneath the ear, the appropriate remedy is under the survival act (3 Comp. Laws, § 10117), citing the case of Olivier v. Street Railway Co., 134 Mich. 367" court="Mich." date_filed="1903-09-15" href="https://app.midpage.ai/document/olivier-v-houghton-county-street-railway-co-7942254?utm_source=webapp" opinion_id="7942254">134 Mich. 367 (96 N. W. 434, 104 Am. St. Rep. 607). We are of opinion that this case is distinct authority for the opposite view. Where there is a continuing injury, resulting in death within a few moments, it is “instantaneous” within the meaning of the statute.
It is next urged that no. negligence was shown on the part of the defendant, and that plaintiff’s decedent was guilty of contributory negligence, as a matter of law. We will discuss the latter question first. Emil O. Basey, the son-in-law, on cross-examination, testified as follows:
“When I crossed the track, I was about 15 or 20 feet east of the west curb of the south boulevard. The tern*272 porary track was about 3£ or 4£ feet from the south curb.
“Q. Just before you got to the track, if you and Mr. West had stopped, that car would have gone by, if you had stopped before stepping on the track ?
“A. Yes.
“Q. As a matter of fact, it would, wouldn’t it ?
“A. Yes, sir.
“Q. The car was right there ?
“A. Yes.
“Q. You stepped on the track, and the car hit Mr. West ?
“A. Yes.
“Q. So probably the car was a. very short distance from Mr. West when he stepped on the track ?
“A. It was about, I should say about, 30 feet.
“Q. Coming at full speed !
“A. Coming at fair speed — regular speed. It was the speed as they generally run on Gratiot avenue there. I could not just exactly say what speed. I was ahead of the deceased, and Philip West was ahead of him. Philip West stepped upon the track first. He crossed it. I stepped on the track and just about got off by the time that the car struck Mr. West. The motorman did not stop at the boulevard. When the deceased was struck, I was up to the next track, about as far as the next track, about 4 feet. Mr. West was a little in back of me, about a step behind, so that just as Mr. West was stepping through the track the car hit him.”
Philip G. West, the son, on direct examination, testified :
“We started catering across Gratiot avenue. We struck the temporary track about 15 or 20 feet east of the west curb of the boulevard south on Gratiot. Mr. Basey was between myself and father. I had not noticed a car coming until I was in between the rails of the temporary track. The car at that time was part way between the boulevard and Helen. It was nearer the boulevard than Helen, I could not say exactly how many feet.
“Q. Could you give us an estimate ?
“A. Well, it might have been halfway between the boulevard and Helen.
“Q. You were on the temporary track at that time ?
“A. Yes, sir.
“Q. Where was your father ?
*273 “A. Why he was about getting onto the temporary track when I was in the middle of the track. We were about 15 feet east of the west curb of the boulevard. When my father was struck, I was just stepping onto the main track; that is, the permanent track.
“Q. About where was your father when he was struck?
“A. He was either stepping on, or had his foot on, the track. I could not say which. He was just stepping on the second rail when the fender of the car struck him. He fell backwards. The car ran between 75 and 125 feet after it struck him.”
It is apparent from this testimony that the three men, engaged in conversation, attempted to cross in front of a car moving at full speed, in broad daylight, when it was in such close proximity that the most casual observation should have warned them of the danger. If, as testified to by Basey, the car was but 30 feet away, and running at full speed, when plaintiff’s decedent stepped upon the track, it was then but 10 or 15 feet west of the westerly line of the boulevard, the point at which, according to plaintiff’s contention, it should have stopped, in compliance with the rule. A car running at full speed cannot be stopped in such a short distance, and a glance must have advised plaintiff’s decedent that no stop was intended by the motorman. He could not rely upon compliance with a rule or custom, of the instant breach of which he had actual notice. Evidence of a regulation or custom is admissible as bearing upon decedent’s negligence. McKernan v. Street Railway, 138 Mich. 519 (101 N. W. 812, 68 L. R. A. 347), and cases cited. But there is no room for the application of testimony of this character where, as in the case at bar, the physical facts are such as to show beyond peradventure that plaintiff’s decedent, in the exercise of the most ordinary prudence, could not have relied upon such custom or regulation.
Judgment reversed, and a new trial ordered.