52 Mich. 402 | Mich. | 1884
This is an action for personal injuries alleged to have been caused by the driver of the defendant negligently causing his car to run against the vehicle of the plaintiff, as he was driving along one of the streets of Detroit.
The plaintiff was sworn as a witness in his own behalf, and he also called the driver as his witness. After hearing
According to the plaintiff’s story he was driving a -one-horse vehicle along the street on one side of the defendant’s tracks when he encountered obstructions and turned towards the tracks so that his right-hand wheels were over the rails. He did not look behind him to see if a car was coming until he felt something strike the rear wheel. He then looked around and saw it was the street car, and the driver, as he says,
“motioned me with one hand to go on or he would knock a wheel off me. I laughed at him and said, ‘ You better not knock off more than one or two of them or somebody will have to pay for them.’ He kept on motioning to get out •of the way. I told him I could not get over those wagons, and I was not going to try, but I would get out of his way just as soon as ever I could. I kept on. There was a number of wagons standing on that side of the street, loaded with brick, and three or four or five of them with the rear ends of the wagon out on the street further than the fore end, which brought the rear end of these wagons very near the car track, so that I had to get with'the wheels oil •the right-hand side of my wagon partially onto the track, and some places it got off the track, and some places I had to get right out pretty well over the track.”
Up to this point the plaintiff was not only in fault, but he was the only party in fault. He had driven upon the track in front of an approaching car without looking around until the car had come m collision with his vehicle. This was gross carelessness on his part. But further on his evidence shows that the other side of the track was entirely •unobstructed, and that there was nothing to prevent his crossing at once and allowing the street car to proceed on its way. The car had come to a stand-still on the first collision, and the plaintiff’s conduct in maintaining his ground and responding to the driver’s request that he should get out of the way by a laugh and a threat, was not only a wrong to the defendant but also to any persons who might then be riding in the car or awaiting its coming.
But this is an action in case, and the ground on which it is sought to charge the defendant is that its servant negligently drove the car against the plaintiff’s vehicle. We are then to see whether, if negligence on the part of the driver is made out, or there is any evidence tending to prove it, the plaintiff himself, on his own evidence, does not appear to have been at least equally negligent. And we think lie-does. He knew very well he was in the driver’s way, and he had had ample time and opportunity to get out of danger if so disposed. That he was not disposed to allow the car
The driver’s testimony is quite different from the plaintiff’s. He testified that when he first signalled' the plaintiff to get off the track, the plaintiff made no effort to do so. The driver told him to get off or he would be run into, and he replied,.‘Kun and be damned; he had as much right to the track as the driver had, and would get off when he pleased.’ He drove right along on the track, looking back and scolding the driver. Finally he turned off, and the car moved on, but he almost immediately turned again towards the track sufficiently to be struck by the car. If this evidence is true the contributory negligence of the plaintiff was plain and very gross, and he must bear the consequences. Whether, therefore, we believe the plaintiff or the driver, the ruling of the circuit judge was well warranted.
The judgment must be affirmed with costs.