Renders v. Grand Trunk Railroad

McAlvay, J.

Plaintiff recovered a judgment for damages against defendants Grand Trunk Railroad Company and Detroit United Railway in the Wayne circuit court for personal injuries received January 15, 1904. The Detroit, Grand Haven & Milwaukee Railroad Company was also a defendant to the suit. After hearing plaintiff’s proofs, the trial judge directed, a verdict in its favor. Plaintiff was about 20 years old at the time of the accident, and was employed in a cap factory in Detroit, going to and from her work on the cars of defendant street railway. This company operates its cars on Gratiot avenue, a public highway in said city, running east and west, and crossing Dequindre street, which runs north and south. TJpon and along Dequindre street are the tracks of defendant railroad company upon which it operates its trains. At this crossing, on this day, at about 6 o’clock in the evening, defendant railroad’s passenger train going south collided with defendant railway’s street car going east, in which plaintiff was riding, by reason of which ■collision she was injured. At this crossing the Grand Trunk Railroad Company maintains gates. The passenger train was due and on time. A street car going west had crossed the railroad track. The gateman shut the east gate down behind it, and when it passed the west gate he started to close that; but the car which was going east ran under it, so that he could, not get the gate down lower than the trolley, and left it there. He saw the passenger train coming, the headlight burning. He raised the east gate, as he says, “ to give them a chance to get through.” When the street car was struck both gates were up. .,

We are asked by defendants to reverse the judgment for several reasons:

1. No negligence upon the part of either defendant having been shown, a verdict should have been directed in their favor. It is argued that, in order to hold defendants liable, negligence must be presumed. The gate keeper, agent of defendant railroad company, testified when and how he operated the gates on that occasion. The car going west was crossing the track, and he shut the east gate behind it. He then attempted to shut the west gate, but the car going east ran under this gate and it could not be lowered. He saw the train coming with the headlight burning. He raised the east gate to give them a chance to get through. This passenger train was due and on time. As to defendant railroad company, we cannot say that there was evidence of negligence in the manner of the manipulating the gates by its agent. The car going west had passed in safety, and the gates would have been down but for the street car coming under the west gate and making it impossible to close it. To raise the east gate to give them a chance to get through after he saw the car proceeding to cross cannot be held to be negligent. It was the only avenue of escape. No negligence is shown in the operation of the passenger train. The court left the question of the negligence of defendant railroad company to be presumed. It was error to do so. Upon this record the court should have directed a verdict, for the reasons stated, in favor of defendant Grand Trunk. Railroad Company. It is the settled rule in this State that negligence cannot be presumed, that the mere fact of an accident is not sufficient to impose a liability for negligence. Toomey v. Steel Works, 89 Mich. 252, and cases cited — cited and approved in Robinson v. Charles Wright & Co., 94 Mich. 286; Perry v. Railroad Co., 108 Mich. 135.

It is argued that there was also no proof of the negligence of defendant street railway. The law for the protection of the public imposes a duty upon the operators of a street , car, in crossing a railroad track, to stop the car and go ahead to ascertain by looking and listening if the way is clear. In this case there is the undisputed fact that there was a train approaching in plain view with a headlight burning. Under such circumstances, with this undisputed physical fact established, the question of this defendant’s, negligence was one of fact for the jury to determine. It. was not error for the court to submit this question to the jury, and to refuse to direct a verdict for defendant street railway.

2. Defendants claim that the court erroneously allowed the introduction of the mortality tables in evidence. The objection made to their introduction, without specifying any ground upon which it was made, was' that they were incompetent. These tables were not referred to in the charge of the court, and the record does not disclose that they were again mentioned in the case. This court has held, with reference to such a general objection:

“ If anything is settled by bur decisions, it is that, unless an objection clearly advises the trial court of the specific ground upon which it is made, it will not justify a reversal.” Detzur v. Brewing Co., 119 Mich. 287 (44 L. R. A. 500), and cases cited.

3. Error is alleged to have been committed in ^permitting plaintiff to introduce testimony as an element of damages that she was troubled with fainting spells; that such testimony was not admissible under the pleadings and proofs. We think the declaration sufficient. It was in the usual form setting forth the injuries plaintiff received, and the results arising therefrom. The declaration contained no allegation relative to fainting spells, but the testimony of the physician tended to show that they followed as a consequence of the injuries received. This testimony showing fainting spells after the injury was admissible. Montgomery v. Railway Co., 103 Mich. 47 (29 L. R. A. 287); Johnson v. McKee, 27 Mich. 471.

4. It was not error to deny defendant’s motion for a new trial. There was evidence to support the verdict, and it was not excessive.

The judgment of the circuit court is affirmed, with costs, against the Detroit United Railway, and reversed as to defendant Grand Trunk Railroad Company, with costs against plaintiff.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.