Dawe v. Flint & Pere Marquette Railroad ( 1894 )

Montgomery, J.

Plaintiff’s' intestate, Anna McIntosh, instituted this suit to recover for personal injuries. The circuit judge directed a verdict for the defendant. She has since deceased, and her administrator brings the case here for review.

Deceased testified that she was struck by an incoming train while crossing the railway track of defendant. The. evidence shows that, traversing a distance of 48 feet before she reached the track in- question, and after passing the gate, she could have seen the approaching train for a distance of 425 feet at least, had she looked.

The case is ruled by Gardner v. Railroad Co., 97 Mich. 240, and the cases there cited, unless it shall be held that the fact that the gate was not let down excused the deceased from exercising care in crossing the track. The plaintiff relies upon the cases of Richmond v. Railway Co., 87 Mich. 374, and Evans v. Railroad Co., 88 Id. 442. The rule established by these cases is that a party approaching a railroad track has a right to rely upon the absence of such warnings of danger as it is shown to be the custom of the railroad company to give. But in the present case the deceased herself testified that she thought the gates did not fall for a yard engine. As the circuit judge very pertinently said:

“ If she was looking to see a yard engine, of course she could see a regular train as easily.’’

The judgment will be affirmed, with costs.

Long, Grant, and Hooker, JJ., concurred with Montgomery, J.