Tree v. Detroit, Grand Haven & Milwaukee Railway Co.

Plaintiff, with his truck, was proceeding in a westerly direction along Wood-bridge street, which ran at nearly right angles with the railway tracks. At the northeast angle the flagman shanty was located; at the northwest angle a field; at the southwest angle a circular building. At the southeast angle a string of freight cars was standing, and at that intersection a building extending half a block south, which was situate close to the street. There were four tracks to cross. As plaintiff approached the tracks he slowed his truck from 12 miles an hour to 4 miles. Before entering on the east track he looked to the north. He could see some distance in that direction. At that point he could see practically nothing to the south by reason of the freight cars. When he got on the second track he looked to the south and saw a train approaching on the third track. He was so close to the third track that he thought the safest course was to increase his speed and hasten across. Before he cleared, the locomotive struck his hind wheel. This would indicate his judgment in the emergency was fairly good, as a moment more would have put him beyond the reach of the train.

The tracks, after crossing Woodbridge street from the north, turn sharply to the southwest, and plaintiff says he could not see more than 30 or 40 feet south of the intersection when he entered on the second track, on account of this sharp curve and the building adjacent. As he approached the tracks he did not see the flagman who was usually there, and did not see him until after the accident had happened. He heard no bell, nor any noise of a moving train before he saw it.

It is said he was guilty of contributory negligence because he did not look south first instead of north. He could not look both ways at once. Had he looked south, and the train had been coming from the north, then it would have been claimed that he was guilty of contributory negligence because he did not look north first. A similar contention was made in Morgan v.Railway, 234 Mich. 497. In answer to it we said:

"Contributory Negligence of Plaintiff: Plaintiff drove to the railway track and stopped about 10 feet from the track. He looked and listened and saw no car approaching. He started up and looked again when he had a better view. There was nothing in sight from the east. He glanced to the west and the car was dangerously near him. He was then on the track. He concluded it would be better to proceed, but for the lack of a second more time he failed to clear it. His view to the west was interfered with by a thorn-apple tree about 23 feet from the highway, whose branches extended into the railway right of way from 4 to 6 feet. A large sign, located 117 feet west of the highway, interfered with his view. Besides these, the photographs show that the right of way was a narrow one, and that poles and trees were farther to the west. From where he stood 10 feet from the track he could see from 100 to 150 feet to the west. Counsel argue that if plaintiff had stopped his motor when he stopped his car he, doubtless, could have heard the car approaching, and that if he had stopped further north he would have had a better view to the west. We think these are arguments that should be addressed to the jury. Because he failed to do those things it cannot be said, as a matter of law, that he was negligent (Nichols v. Railway Co., 203 Mich. 372), although the jury might find that he was guilty of contributory negligence for having omitted to do those things. It all gets back to the question as to whether the plaintiff conducted himself as an ordinarily prudent man would have done under similar circumstances. It was clearly a question for the jury. 22 Rawle C. L. p. 1031."

All of these facts and conditions about which reasonable minds might differ were questions for the jury, and I think the trial court was in error that he decided the question as one of law.

I think the judgment should be reversed, with costs of both courts to plaintiff.