Rushford-Surine v. Railway Co.

Accepting the opening statement of plaintiff's counsel as the facts in the case and all of them, as we should, it is established that when the decedent and his companion were approaching the track and for 50 feet back from the track they had an unobstructed view in the direction the train was coming from for a distance of from 600 to 1,000 feet. Their truck could have been stopped in 5 or 6 feet going at the rate of 10 or 12 miles an hour. They were going up hill. If they drove that distance without stopping their car or looking for a train, or if they saw the train when they could and should have seen it back 50 feet from the track in a place of perfect safety and tried to beat it across, they were guilty of contributory negligence as matter of law. Lanier v. RailwayCo., 209 Mich. 302; Britten v. Railway Co., 224 Mich. 91;Eisele v. Railway Co., 224 Mich. 236; Sheets v.Railroad Co., 224 Mich. 588; Baader v. Railway Co., 228 Mich. 104; Pamburn v. Railroad Co., 228 Mich. 472; West v.Railroad, 229 Mich. 590.

But my Brother McDONALD reasons that because there was no witness to the accident a presumption arises that they exercised due care and looked but did not see the train. Such a presumption could not make a stronger case than would testimony that they looked. Had there been such testimony in the case, it would not take the case to the jury where the undisputed physical facts establish that had they looked with the slightest degree of care they could not have failed to see the oncoming train. Champaign v. Railway,181 Mich. 672; Molby v. Railway, 221 Mich. 419; Bradley v.Davis, 223 Mich. 275; Downey v. Railway Co., 230 Mich. 243. In the last cited case, it was said by Mr. Justice SHARPE, speaking for the court:

"His testimony that he did look and did not see the locomotive is so opposed to the undisputed physical facts that it cannot be said to raise a question for a jury. He either did not look when first in a position to see down the track, or else after he saw the approaching train he concluded that he had time to cross. In either event, he was guilty of such contributory negligence as bars his recovery."

My Brother does not discuss the question of subsequent or discovered negligence. Nor do I think that question is in the case. If the decedent and his companion were guilty of negligence, and I think they were, such negligence continued until the collision. It was not subsequent or discovered negligence but concurrent negligence. Gibbard v. Curgan,225 Mich. 311; Watts v. Railroad Co., 231 Mich. 40. If the engineer had seen the truck when it came in view 50 feet back from the track and when the train was 500 or 600 feet from the crossing, and this is the most it can by any possibility be claimed he was bound to do, he would not have been bound to assume that the occupants of the truck would continue on their way and be required to stop the train. In Knickerbocker v. Railway Co.,167 Mich. 596, it was said by Mr. Justice OSTRANDER, speaking for the court:

"But it is not negligence — clearly it is not gross negligence — to fail to stop or to fail to gain complete control of a train of cars, merely because persons are seen approaching the track upon a highway on foot, or with vehicles. Such an approach is not usually evidence of negligence, and such persons are not usually in any peril."

From the opening statement it appears that the train ran 980 feet after the engineer applied the emergency brakes before the train stopped. No case of subsequent or discovered negligence was made out, and the doctrine of comparative negligence does not obtain in this State.

The judgment is affirmed.

SHARPE, C.J., and SNOW, STEERE, WIEST, and CLARK, JJ., concurred with FELLOWS, J. BIRD, J., did not sit.