Grostick v. Detroit, Lansing & Northern Railroad ( 1892 )

Long, J.

The plaintiff had verdict and judgment in the court below for $18,143.50. The action was brought in the circuit court for Livingston county for the negligent killing of August Grostick, plaintiff's husband, on the afternoon of October 19, 1889, on a highway crossing just west of the station at Howell, on defendant's road.

The negligence alleged in the declaration is that defendant failed to sound its whistle or ring its bell continuously for at least 40 rods before reaching the crossing; ran over the crossing at a great rate of speed, the crossing being a dangerous one; and the employment of careless and incompetent servants.

The station at Howell is in the southern part of the town, at the extremity of a street known as “Gross Street." Defendant's road runs at right angles with this street. Next west of Cross street .is one which ends at an elevator, and does not cross the railroad track; and the street next west of this is known as the “Pinckney Boad” or “Bast Street," and crosses the railroad track, and is the one upon which plaintiff's husband was killed, There is another street still west of this, crossing the railroad, called “Walnut Street." The railroad runs nearly straight from the station, crossing these streets; and in crossing Walnut street turns more to the west, and at a distance of several hundred feet from Walnut street enters what is known as “Jewett Gut." The distance from Pinckney Boad or East street to the east end or mouth of Jewett cut is 1,150 feet. East street crosses the railroad at an elevation of seven or eight feet above the natural surface of the ground, and from that point westward to the mouth of Jewett cut the railroad is upon an embankment of at least that height the entire distance. At a point 120 feet north of the railroad crossing on East street is the first house on the east side of that street, and from that point there is no obstruction to the sight for the entire distance along the railroad track, west to the mouth of Jewett cut.

Plaintiff's intestate, about half-past 3 o'clock in the afternoon of the day upon which he was killed, was going from the village of Howell forward along East street or Pinckney road, driving a span of horses attached to a lumber wagon. He was alone, and riding upon a seat upon the wagon-box. When he had passed Mr. Sexton's house, 120 feet north of the railroad track, he could see the whole distance to the mouth of Jewett cut, as there was nothing to obstruct his view, and the track being elevated above the natural surface of the ground. Passing from Sexton’s house to the track, there was no point at which he could not have seen the entire length of the railroad track to the mouth of Jewett cut. There was some obstruction to-his view to the eastward, and he could not see the station of the .defendant company until he had nearly approached the track, although plaintiff's counsel, in his brief, admits that the deceased could have seen eastward along this track towards the station when within 120 feet of the crossing. The train by which the deceased was struck was coming from the west, running at considerable speed, a little behind time; the time varying from 5 to 15 minutes, as ■ testified by different witnesses. According to the testimony of plaintiff's witnesses the train was running from 25 to 30 miles an hour. There was testimony showing that the bell was not rung or whistle sounded for this highway crossing.

Upon the part of the defendant, it was contended that the bell was a steam bell-ringer, ringing continuously , from station to station. Many persons upon the platform of the depot, who were waiting for the train and listening for its approach, testified that they heard the whistle! blown just as the train was entering Jewett cut from the! west. This is called the “ station-whistle.” There is no! contention but that this whistle was sounded. This point! was some 1,400 feet west of the Pinckney-road crossing. The witnesses testified that the deceased was driving along on a slow trot, and some of them say that he appeared to be looking to the east. He was familiar with this crossing.- As his horses reached the track the engine struck them, and Mr. Grostick and his horses were instantly killed. The engineer of the engine was on the south side of the cab, and did not see the deceased, on account of the dome and sand-box and other things upon the engine. The fireman was on the north side of the cab, and a part of the way from Jewett cut he was occupied in attending to his fire. He says he saw the man approaching slowly, but did not anticipate danger, and thought he would stop, until he was within 25 feet of the track, when he says he saw him start up his horses, and he (the fireman) at once called to the engineer, “■Whoa! ’Whoa!'’ upon which the engineer applied the air-brakes and reversed the engine. The train was a heavy one, consisting of five cars, engine, and tender, and being 304 feet in length.

The only question which I shall discuss is whether there was any evidence to go to the jury showing or tending to show that the deceased was exercising due care in attempting to cross the railroad track in the manner and under the circumstances here stated. It has been repeatedly held by this Court that a person about to cross a railroad track is bound to recognize the danger, and to make use of the senses of hearing and sight, and to ascertain, before attempting to cross, whether a train is in dangerous proximity. If he neglects to do this, and ventures blindly upon the track, it must be at his own risk; and such conduct should be pronounced negligence by the courts, as matter of law. Lake Shore & M. S. R. R. Co. v. Miller, 25 Mich. 274; Pzolla v. Railroad Co., 54 Id. 273; Rhoades v. Railway Co., 58 Id. 263.

It was held in Potter v. Railroad Co., 62 Mich. 22, that—

“ It is the duty of all highway travelers [approaching a railroad crossing] to keep a due lookout; and, if they do not choose to heed what they ought to heed, they must bear the consequences,”

In Mynning v. Railroad Co., 64 Mich. 93, it was held by this Court that—

“A railroad track is a warning of danger to those who go upon it, and persons about to cross are bound to recognize the danger, and make use of the sense of hearing as well as of sight, and, if either cannot be rendered available, the obligation to use the other is the stronger, to ascertain, before attempting to cross, whether the, train is in dangerous proximity; and if they neglect to do this, and venture blindly or carelessly upon the track, it must be at their own risk. Such conduct is of itself negligence.”

This same doctrine is laid down by this Court in Haas v. Railroad Co., 47 Mich. 401; Matta v. Railway Co., 69 Id. 109; Freeman v. Railway Co., 74 Id. 86; Gebhard v. Railway Co., 79 Id. 586; Brady v. Railroad Co., 81 Id. 616; Guta v. Railway Co., Id. 291; Underhill v. Railway Co., Id. 43; Apsey v. Railroad Co., 83 Id. 432.

The trial court left the question of the contributory negligence of the plaintiff’s intestate to the jury as a question of fact for their determination, stating to them:

“It becomes a question of fact for you to determine whether or not negligence exists on his part in attempting to cross, or whether he acted, under the circumstances, as a man of reasonable caution and prudence would have acted under like circumstances. If you find from the evidence that he did listen and look, and had no notice by sight or hearing, and if you find that no whistle was twice sounded, no bell rung, and that he had no notice by sound of rumbling train, or smoke, and ventured to cross, and that, while crossing, his danger was seen or known by the employés of the defendant at a sufficient distance from the road crossing to enable them to slacken the speed of the train, or even to stop it, and that it was not done, that would be gross negligence on the part of the defendant in running its train, and it would not be thereby excused from liability.”

TJnder the circumstances here stated, the court was in error in thus directing the jury. The deceased was a man 50 years of age, of good health, sound in mind and body, his hearing and sight not defective. He had lived just east of Howell for many years, and was thoroughly familiar with this crossing. Applying these facts to the rules of law heretofore laid down by this Court in .the cases above cited, we think it was the duty of the court to have directed a verdict in favor of the defendant. The burden was upon the plaintiff to show, not only that the defendant was guilty of negligence in the premises, — ■ a point which we do not deem necessary to discuss, — but that her intestate was exercising due care in approaching this crossing. Under the conceded facts in this case, when he was within 120 feet of the track he had a clear, unobstructed view of the track, every foot of the distance to the mouth of Jewett cut,- until he passed upon the •¡¡rack. Apparently, he was looking eastward, and giving no heed whatever to a train approaching from the west. According to the testimony, he exercised no care whatever, but drove his team along without looking westward until he was struck and killed. This was such carelessness that his administratrix should not, as a matter of lav/, be permitted to recover.

We need not discuss the other questions raised. Upon the ground here stated, the judgment below must be reversed, and a new trial ordered.

Morse, C. J., Grant and Montgomery, JJ., concurred with Long, J.