190 Mich. 469 | Mich. | 1916
On January 28, 1908, plaintiff’s intestate was struck and fatally injured by a switch engine of defendant while he was walking along its railroad track jn the outskirts of the city of Muskegon, Mich. The trial court directed a verdict for defendant at the conclusion of the proofs, upon the ground that it appeared from the undisputed evidence deceased had unnecessarily and for his own convenience selected a known path of danger, but for which the accident could not have occurred, and while traveling along it took no reasonable precaution for his own safety, which primary negligence caused or contributed to the accident and precluded a recovery.
Plaintiff’s- intestate was a man of mature years, sober, and in full possession of his faculties, both mental and physical. That a sane adult, with no infirmities, who unnecessarily selects the used track of a railroad as a pathway and continues to remain upon or walk along it until struck by a passing train or engine, is, as a general proposition, guilty of negligence which
While not directly conceding deceased’s negligence, plaintiff’s counsel do not seriously claim to have sustained the burden of proof upon the issue of whether, deceased was free from contributory negligence, but base their contention that plaintiff is entitled to recover upon the charge in her declaration, and claimed sustaining proof, that defendant was guilty of discovered, or gross, negligence in running its engirie over its track backwards, without a proper lookout, and without warning, by bell or whistle, at the place of the accident, which occurred on a portion of defendant’s right of way generally used by the public for many years as a thoroughfare, with the knowledge and acquiescence of defendant.
Most of the material facts are undisputed. The accident occurred after 9 o’clock in the forenoon, about halfway between Grand and Houston avenues, in the southerly part of the city of Muskegon, where defendant’s track runs through the block which lies between the avenues, curving in a northwesterly and southeasterly direction. It begins to curve northwesterly from Grand avenue which lies south of Houston. On the south side of Grand avenue, west of and near the track, are located the “Rogers boiler shops,” with an office on the avenue and the shops back of it to the south. Farther south, and near the track, is another industry called “the chemical works.” On either side of the railroad are north and south streets, crossing Grand avenue, available to readily reach the central part of the city from Rogers’ shops, although along the track is the “shortest cut”; and it was shown that employees of factories in that vicinity, and the public generally, were accustomed to travel on foot along defendant’s right of way in that locality, when and as they chose, to the knowledge of defendant’s agents and
“I told him that I was going down town; that if he would, wait a little while I would take him down town. He said he was in a little bit of a hurry, as I remember now, and' wanted to get right off. After he left the office, he walked along just north of the rails. There seems to be a little path running along that side, and he was taking that path. Before he started down the track I saw him fix his cap. When he got right at the crossing, he laid the iron that he had on his shoulder down, and muffled up his coat and pulled his cap down over his ears and buttoned his coat up, and then picked up the iron and put it upon his shoulder and went down the track. The weather was very stormy; the wind was blowing very hard, and the snow blow•ing. In fact it was blowing so hard you could hardly see a block away. It was snowing quite bad, and the snow was carried in all directions on account of the wind. The wind was coming from the northwest right up to the track from the lake. There is a gully right there, and it comes up there a little bit stronger.”
An engine was switching cars south over this piece of track that morning to a point near the chemical
Plaintiff’s testimony failed to disclose even prima facie that warnings by bell and whistle were not given as customary and required by law. The accident occurred on defendant’s right of way in the middle of a block, where such signals are not imperative. Defendant’s testimony was positive that the whistle was sounded on approaching Houston avenue crossing just before entering upon the curve to the north beyond it, and the bell was ringing automatically all the time the engine ran. Three of plaintiff’s witnesses testified negatively that they did not hear or notice the bell ring, and one said he would have heard it if it was ringing, but on cross-examination testified all he meant to say was he did not hear any whistle or bell. Another stated he did not notice any signals; that he did not “very often pay any attention to those whistles,” and “the bell may have been ringing all the time, and I might not have noticed it at all.” The third, who testified no whistle was blown between Grand and Houston avenues, also said:
“I don’t know whether the bell was ringing or not. I heard the whistle up there by Rogers’ shop. I saw*474 the engineer in the cab with his head out of the window.”
Four persons were riding in the engine cab, the engineer, fireman, and two other members of the train crew who were assisting in the work of making up their train. None of them observed deceased, or then knew that any one had been injured. He was outside the rails on the fireman’s side when struck. The fireman was putting in a fire, and consequently not watching the track, while the' engineer, in charge of and operating the engine, was in his seat, keeping a lookout ahead, as. testified to by both those with him upon the engine and others who saw him at the time. There was a sharp curve in the track at the point where the accident occurred. The engineer testified that he was keeping a vigilant watch ahead but it was then snowing and blowing, so that he could not see any distance, and the storm, combined with the “lay of the track,” made it impossible |or one on the engine to see any person on or close to the track at that time and place.
Although it is shown that while running this engine backward in the work of making up a train constant lookout was maintained, the speed was not excessive, all signals required by law were given, and no rules of the company for operating an engine under such conditions violated, plaintiff urges that it was gross negligence not to have kept such a lookout as to have seen deceased in time to adequately warn, or stop, before hitting him, and insists that because this was a place customarily used as a thoroughfare by foot passengers to the knowledge of defendant, greater precautions should have been taken, and a more vigilant watch maintained, not alone from the cab of the engine, but by a person stationed at the front end of the tender in the direction the engine was running. Assuming greater care should have been taken in that particular, liability does not follow from such neglect
“Why, just a little before the engine got to him he stepped on the outside of the rails, and I thought to myself then that he was in the clear until I saw the splur in the snow, and the curtain was blowing on that side of the engine so that I could not see that it did hit him. * * * You see there, was an awful sharp curve there. * * * At times it was blowing enough so that snow flurries would swish .about in the air. * * * He was quite clear to me until the light snow from the tank blowed up. I could see him quite plain until that light snow blowed up: that kind of blinded him from me, but I kept my eye on him all the time from the time I saw him walking in the middle of the track.”
Charles Misch, who testified that as he saw him deceased was “walking just outside of the tracks” on a-path at the end of the ties, and he did not appear to be conscious of the approach of the engine, also said:
“I supposed that he heard it when it blew, but by' the time it was a couple of feet from him it was too late to holler at him then. * * * I thought, ‘That fellow is pretty close/ and just as I stopped, it struck him.”
William Peterson, a mail carrier, who happened to be in that vicinity, testified that he noticed deceased was facing the storm as he walked along the track and might meet with an accident, but did not call him, saying in part:
“I thought that he was far enough on the east side of the track so that — at least, I thought he was on the outside of the rails on the further side from me, and*477 after the engine passed between us I saw his form laying alongside the track. * * * He was on what we would term 'the east side’ of the track there. The engine was backing slowly toward him.”
It has been repeatedly held by this court that those running trains are not required to stop or check simply because they see ahead of them upon or approaching the track persons who are apparently without disability and of sufficient age to understand the hazards of a railroad track, always to be recognized as "a perpetual menace of danger.”
The fatal result of this unfortunate accident gives pause to discussion or criticism of deceased’s initial negligence as compared with that of the defendant’s employees, which plaintiff contends was gross, and therefore so reckless, wanton, or intentionally wrong as to acquit the injured party of fault. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274; Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 872, 3 L. R. A. 594). This court, in harmony with the great weight of authority elsewhere, has defined gross negligence as—
“ 'the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exercise of any effort to avoid them.’ Schindler v. Railway Co., 87 Mich. 400 [49 N. W. 670]. See, also, Richter v. Harper, 95 Mich. 221 [54 N. W. 768] ; La-barge v. Railroad Co., 134 Mich. 139 t95 N. W. 1073] ; Buxton v. Ainsworth, 138 Mich. 532, [101 N. W. 817, 5 Am. & Eng. Ann. Cas. 146] ; Knickerbocker v. Railway Co., 167 Mich. 596 [133 N. W. 504]; 29 Cyc. p. 507.” Putt v. Railway Co., 171 Mich. 227 (137 N. W. 136).
As was there said in conclusion:
"Applying the definitions and principles laid down ,.in the foregoing cases to the facts in the case at bar, we are of opinion that there was no evidence in the*478 .case which warranted its submission to the jury upon, the question of defendant’s gross negligence.”
The judgment of the trial court was therefore right and will stand affirmed.