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

In each of these three consolidated cases, plaintiff's decedent was a boy about 18 years of age. On March 17, 1924, near eight o'clock in the morning of a clear day, the three boys, walking abreast on Harper avenue in Detroit and passing on the crossing of defendant's railway tracks with Harper avenue, were run over by a backing locomotive. One boy was killed instantly; one survived several hours; and the other, it was found, also survived for a short time.

In one case there was recovery under the death act, and in the other cases, it appears, under the survival act. Each of the three verdicts is a substantial sum. On decision of a reserved motion to direct verdicts, the trial judge ordered judgments for defendant. The plaintiffs bring error.

Judgments on the verdicts were denied on the ground of contributory negligence of the boys. The error assigned is on the order of judgments for defendant. Defendant assigns no error.

There is evidence of negligence of defendant, and this calls for no discussion.

Were the boys guilty of contributory negligence as a matter of law?

Pertinent facts are thus well stated by the trial judge:

"Harper avenue runs east and west; defendant's right of way runs north and south. There are four railway tracks which cross Harper avenue. The westerly track is known as siding 11. The other tracks in order, proceeding easterly, are known as the inbound main track, the outbound main track and the long siding. Several hundred feet north of Harper avenue the main tracks curve to the west. West of siding 11, and north of Harper avenue, and running parallel to the other four tracks, there are also two stub tracks which end at the sidewalk just north of Harper avenue. According to plaintiffs' witness, railway boxcars were standing upon these stub tracks, and also upon siding 11, north of the northerly sidewalk of Harper avenue, and within a foot or two of the same, obstructing the view, north, of the inbound main track, plaintiffs' principal witness testified also that there was a locomotive operating on siding 11 just south of Harper avenue, and that its bell was ringing just preceding the accident. All witnesses agree that immediately preceding the accident, a locomotive, with bell ringing, and train of cars proceeded north on the outbound main track, crossing the intersection a moment or two before the accident. The accident occurred during the daylight hours.

"As stated, the three decedents were walking easterly upon the sidewalk upon the north side of Harper avenue across the railway tracks. They proceeded to the center of siding 11 where they stopped and looked south. At that point the train going north on the outbound main track went by. The three decedents, walking together, then started across the inbound main track. A few feet behind them was Alfred Wolinski, plaintiffs' principal witness, who saw the accident and described its happening. He testified that the three lads, after stopping in the center of siding 11 and looking south, proceeded to cross the next track (the inbound main), without looking north, and that they were struck and killed by a locomotive and tender coming from the north and running backwards in a southerly direction on the inbound main track. Wolinski also testified that the watchman or flagman required to be in attendance by virtue of an order of the Michigan railroad commission was not in evidence at the crossing just prior to the accident."

The protection of the crossing was by order of the Michigan railroad commission, made January 19, 1916, that a watchman be stationed by defendant at the crossing 24 hours of each and every day to warn the public of approaching engines and trains. There was a watchman's shanty at the crossing.

Plaintiffs' principal witness testified that at the moment in question his vision was clear and unobstructed, he could "see on Harper avenue across the tracks," and that he saw no watchman or flagman. He started across just behind the boys and barely escaped being killed. He gave further testimony, over objection, the competency of which is not here questioned, that, immediately after the accident, the watchman made statements from which it might be inferred that he was not on the crossing at the moment in question.

So there is some evidence that the watchman was not at the moment on the crossing. There is evidence that he was there just before the accident and soon thereafter. On the question before us, the decision of the reserved motion of defendant to direct, evidence must be viewed in the light most favorable to plaintiffs.

There was a small but sufficient safety zone from which the boys, had they looked to the north, could have seen the backing locomotive approaching on the inbound main and thus avoided injury. This fact, if this were an ordinary crossing case, might require affirmance of a holding of contributory negligence, but this was a protected crossing, and other considerations respecting negligence must obtain.

It is settled law that it was upon the boys to exercise the care and caution which an ordinarily prudent person would have exercised in the same or similar circumstances, and from this it follows that regard must be had for the circumstances of the particular occasion. 45 C. J. p. 951.

The evidence here reviewed is that, when the boys, after stopping to look, started across the tracks, the street was clear and the watchman stationed there was not out to warn of the approach of the locomotive.

Granting that one may not rely wholly on flagman, gates, or bell, but must take precaution for his own safety, he may place some reliance on such protection afforded at a crossing. We think it was for the jury to say whether the absence of the watchman and the lack of any signal from him might indicate to a reasonably prudent person that the crossing was clear for safe passage, whether the conduct of the watchman was an invitation to proceed. This view has obtained in case of a pedestrian (Amedeo v. Railway Co., 215 Mich. 371), as in other cases.

See Day v. Railway Co., 252 Mich. 589; Tobias v. Railway Co.,103 Mich. 330; Hudson v. Railway Co., 227 Mich. 1 (23 N.C.C.A. 682); Richmond v. Railway Co.,87 Mich. 374; Crawford v. Railway Co., 207 Mich. 159; note 53 A.L.R. 973; note 23 N.C.C.A. 682; note 16 N.C.C.A. 110, 112.

Under the circumstances of the case, it ought not to be held as a matter of law that the boys were negligent in not looking more carefully before attempting to cross. The trial judge was right in submitting to the jury the question of contributory negligence.

Judgments reversed. Costs to appellants.

Causes remanded for judgments on the verdicts. McDONALD, POTTER, SHARPE, and FEAD, JJ., concurred with CLARK, J.