Stuive v. Pere Marquette Railway Co. ( 1945 )

I cannot concur in the opinion of Mr. Justice SHARPE.

The plaintiff driver with his front bumper at 29 feet from the nearest rail could have seen the train if it were within 250 feet from him. He was then going about 10 or 11 miles an hour. The train was approaching at 45 to 50 miles an hour, or about 4 1/2 or 5 times plaintiff's speed. If 29 feet is multiplied by 4 1/2 or 5, the result would show that when plaintiff's front bumper was 29 feet from the rail the train was 131 to 145 feet away from the crossing. Upon arriving at a point 150 feet from the nearest rail, plaintiff knew the location of the crossing and reduced his speed.

Plaintiff claims that when he glanced to his right at a point when his front bumper was 29 feet west of the tracks, no train was then visible. Plaintiff's own testimony is that when his front bumper was 29 feet from the rail he could see 250 feet down the tracks. Other testimony and the photographs indicate that the train was visible at a greater distance. Plaintiff's testimony that he did not see the train when his front bumper was 29 feet from the tracks merely proves that he looked indifferently. To hold on the basis of such testimony that the train was not then in sight would require a finding that this freight train with 40 loaded cars came at a speed greater than 90 miles per hour. Plaintiff seeks to excuse his failure seasonably to see the train by saying he was laboring under the erroneous assumption that if any train were approaching on the nearer track it must be coming from his left and in consequence he gave that direction his primary attention. That error on his part does not excuse his failure to make certain that he could safely cross before attempting to do so. He was under the necessity of looking in each direction while it was still in his power to avoid the collision. Rosencranz v. Railroad Co.,244 Mich. 137; Benaway v. Railway Co., 296 Mich. 1.

Plaintiff relies on Rogers v. Railroad Co., 289 Mich. 397, in which case the plaintiff driver of an automobile was directed by a flagman to enter a crossing where there were three tracks, was thrown into confusion by the unexpected approach of a train and could not stop seasonably after first seeing the train. We held in that case that it was a jury question whether plaintiff exercised ordinary diligence in attempting to cross. No such direction to cross was given the plaintiff in the instant case.

Plaintiff also relies upon Jones v. Railroad Co., 303 Mich. 114. At p. 119 of that decision we say:

"The driver could not have stopped in time to avoid the collision after reaching the point of clear view of the approaching train."

In the case at bar, plaintiff swears that he quickly looked to his right when 16 feet from the tracks, saw the train, immediately applied his brakes and brought his automobile to a standstill short of the tracks and so that it was only a protrusion of some part of the train that struck his car. It thus becomes very evident from plaintiff's own testimony that if he had observed the train when his front bumper was 29 feet from the nearest rail, he could have avoided the collision. This case is thus differentiated from the Jones Case, supra.

Plaintiff is guilty of contributory negligence as a matter of law. The judgment in each case should be reversed without a new trial, with costs to defendant in each case.

NORTH, J., concurred with REID, J.