Rushford-Surine v. Grand Trunk Railway Co. , 239 Mich. 19 ( 1927 )

Plaintiff's intestate and one Seabrook, who were partners in the draying business, left Ionia with a Reo truck loaded with monument stones, bound for the cemetery in the northern part of the village of Muir. The windshield, curtains and windows formed a cab on the truck in which the two men rode. When they arrived at the village of Muir they drove to Blanchard street, and turned north on that street. They were then 170 feet from the intersection of Blanchard street with defendant's railway track. At this point they had a clear view of the track. From that point to the north the view was more or less obscured by buildings, trees, shrubbery and foliage, until they reached a point 50 feet south of the south rail of defendant's track. When the 50-foot point was reached they had a clear view to the west from 400 to 600 feet. The view to the east was not so good. The truck, at the 50-foot point, was traveling at the rate of 10 to 12 miles an hour, or upwards of 14 feet per second. At this rate the truck would travel from the 50-foot point to the track in about 3 seconds. On each side of the intersection there was an incline in the highway which the truck was obliged to ascend. They drove north onto the railway track and were struck by the 1 o'clock east-bound passenger train, which was traveling at the rate of 45 to 50 miles an hour, and was an hour behind time. Both men in the truck were killed. No crossing warning was given by the engineer. There was no slackening of the speed of the engine until after the collision, the engineer claiming he did not see the truck until the collision occurred. The weather was hazy and misty. The village of Muir had an ordinance in force fixing the maximum rate of speed of trains in the village at 12 miles an hour. The plaintiff filed a declaration of these facts and charged excessive speed, and a failure to give any crossing warning of its approach. Plaintiff also counted upon defendant's failure to give any warning, or to slow the train when the engineer discovered plaintiff going into the danger zone. The plea of the defendant was the general issue. When ready for trial plaintiff's counsel made a statement to the jury of which the foregoing statement embodies the material facts, and, upon motion of defendant, the trial court directed a verdict for it because of the contributory negligence of plaintiff's intestate.

Defendant's Negligence. If defendant's train were traveling 45 or 50 miles an hour within the village limits of Muir, it was a question of fact for the jury whether in so doing it was negligent. Hudson v. Railway Co., 227 Mich. 1; Morgan v.Railway, 234 Mich. 497. If it gave no warning of its approach to the crossing it was negligent. Id. Under the statement of counsel these two questions involving the negligence of defendant were questions of fact for the jury.

Plaintiff's Negligence. Under the first count, if the plaintiff approached the crossing and could see from 400 to 600 feet to the west, and he did not look, no recovery can be had in this action, but the fact whether he failed to look must appear by the proofs, as no living witness saw the accident. In such circumstances it cannot be presumed that he was negligent, and the plaintiff starts out in the trial with the presumption that her intestate was not negligent unless that presumption is overcome by the physical facts. Richardson v. Railway Co.,176 Mich. 413; Cinadar v. Railway Co., 193 Mich. 38.

(a) Suppose from the proofs the jury should conclude that when plaintiff arrived at the 50-foot open space where he could see a train approaching he looked in an easterly direction first and when he looked to the west the unheralded train was so close he thought it would be dangerous to back up and, therefore, tried to go across in safety, would not his negligence be a question for the jury?

(b) Or suppose when he discovered the train he, in good faith, thought he could cross in safety, but being deceived by the excessive speed of the train he missed clearing the train by a second of time. Would not his negligence be a question for the jury?

(c) If the truck were going 10 to 12 miles per hour it would travel a little more than 14 feet a second. He would travel the 50 feet in which he could see in 3 seconds. Suppose plaintiff got on or near the track by his failure to look, and the engineer did see him, or ought to have seen him, and no warning was given, nor any attempt made to slacken the train, would not the question of after-discovered negligence be one for the jury? By applying the brakes when the engineer saw the truck going into the zone of danger he could have given the truck at least a moment or more time to make the crossing, and in less than that time they would have cleared it. These questions are suggested by counsel's statement. We are not disposed to pass upon the case until the final proofs are here, but we think there are questions of fact suggested by the statement of counsel which could not be decided by the court as questions of law.

Much reliance was placed by the court on the case ofKnickerbocker v. Railway Co., 167 Mich. 596. There is an element in the present case, which is very troublesome, that did not appear in that case. In that case two witnesses saw the boy as he went onto the railway track and was struck, while in this case no living witness saw the accident, the engineer claiming that he did not see the truck until the collision took place.

It was commendable in the trial court to try to expedite the business of his court, but we think the practice of directing a verdict upon the statement of counsel, especially in this class of cases, is one that ought not to be encouraged. Sometimes a bit of testimony, a brief cross-examination of a witness or an admission of a party determines the question as to whether the case should go to the jury. Leonard v. Beaudry,68 Mich. 312, 323.

The judgment should be reversed and a new trial ordered, with costs to the plaintiff.