Clark v. Jackson Consolidated Traction Co.

Blair, J.

I am of the opinion that the circuit judge did not err in submitting this case to the jury upon the facts disclosed by the record.

The testimony is in irreconcilable conflict upon the essential facts. The testimony on behalf of the plaintiff tended to show that from the time he turned onto First street until his horses went diagonally across the track near Harwood street, his wagon was at all times so close to the track that the car could not have passed without colliding with it; that the gong was not sounded, nor other warning given, nor any attempt made to stop the car until almost the moment of collision; that the horses and wagon went onto the track, traveling slightly east of south, at a point 85 feet north of the north crosswalk on Harwood street, and the collision occurred 3 or 4 feet north thereof; that the usual rate of speed of the car was about 15 miles an hour, but the car was traveling faster than that at the time of the collision, and ran some 8 rods before stopping after the collision.

The motorman testified in part as follows:

“I first saw Mr. Clark and his wagon after I left Union street. That would be about the first I would take any particular notice of him. I might have seen from Morrell street, probably. I don’t remember seeing him on that day before the accident, particular, as I know of, until I got to McBride street. I did see him at McBride street. At that time he was on the west side of the track between McBride and Harwood. He was three or four rods ahead of me — something of that kind; about halfway between Harwood and McBride. His horses were trotting. At that time the ruts run in close to the track, so he would be so close you couldn’t pass him. I rung the gong, and shut the power off. He turned out a little bit out of the road. I saw he turned, or his horses went; anyway, he went, and I supposed he heard, and I throwed on the power again. He was not in front of me; he was off to one side; generally, he went on his course. He was two or three feet from the track. It was at a safe distance. From the time I stopped — from the time he turned out, when I first rang the gong, as I have detailed, until he approached Harwood street, that was the distance he was from the track. When I approached Harwood street, he acted as if he was going right straight on, and all at once turned right straight across the track. That was a little further beyond than I would have turned, if I was going to cross Harwood street. He turned squarer than I would have turned. When I saw he was evidently intending to cross Harwood street, I rang the gong and shut off the power and reversed. After I struck him, I didn’t go more than a car and a half length. It would be about forty or fifty feet from the place where the car struck him. The car struck his wagon about in the center, a little back of the center, maybe. * * * He continued right along in the rut all the way until within about two or three rods of Harwood. It was two or three rods from Harwood street when he went out of the rut. That took him away from the track. Where he struck the track would have been a little bit south of the center of the road on Harwood. I think he was right in the middle of the intersection of the two streets before he turned to go to his home. * * * The car was then running at full speed. Cars run pretty rapidly down that grade. I don’t believe I was running better than twelve miles an hour. * * * At the point where the rut left the track — left the rails — so as to bring a man driving in the usual traveled part of the way, it continued south most of the way, except two or three places through there. A man driving in the rut from that point four or five rods or better — five. No; I don’t think he would be in a dangerous position within four or five rods of Harwood — this side of Harwood — north. Yes; I am pretty sure of it. Safe down through most of the distance; safe places like that. There was places, of course, where they couldn’t pass on account of the mud holes, and the track was made in that way. The street was pretty rough outside of the beaten track. When I first gave warning, I shut off the power, and then shot it on again aB quick, as I saw he was out of the way, and I could see a way to pass.”

It is apparent from the motorman’s testimony that he observed the plaintiff’s position relative to the track throughout the block, and had full notice of such peril as that position indicated; and if his version of the facts is correct he was free from blame. On the other hand, if the jury accepted the plaintiff’s version of the facts, they would be warranted in finding that the motorman, recognizing the plaintiff’s dangerous position, that, owing to the condition of the street, he would be likely to maintain it, that “he acted as if he was going right straight on,” that he was likely to collide with him before he reached Harwood street (this being a just inference from his claim that he did stop the car for that reason ), that a collision was inevitable, unless the plaintiff drove out of the traveled track, that the plaintiff was apparently not aware of the approach of the car, that his wagon was making considerable noise upon the frozen ground, recklessly ran his car at full speed, and without any warning of its approach, with actual notice that he would probably collide with some part of the wagon. If the collision had occurred while the horses were still proceeding along the wagon track, the case would have fallen clearly within the principle of Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287).

Does the principle of that case become inapplicable, because the plaintiff changed his dangerous position to one more dangerous? I think not. The motorman, having discovered the dangerous position which the plaintiff was in, was charged with the legal duty to so control his car as to prevent a collision, if reasonably practicable. The motorman owed this duty before the plaintiff changed his position; he did not cease to owe it because the plaintiff placed himself more in front of the car than he was before. This is not the case of one going suddenly from a place of safety, as apparent to the motorman, to a place of danger, but of one already in a perilous position, to the knowledge of the motorman, increasing his peril.

I am also of the opinion that the trial judge was justified in submitting to the jury the question of plaintiff’s contributory negligence. Plaintiff testified that when he drove onto First street he looked to the north, and there was no car in sight, and he could see for three blocks; that he then drove rapidly to make his crossing at Harwood street, traveling, according to his estimate, about 10 miles an hour. According to his testimony, a car would have to travel at a very unusual rate of speed to overtake him; and under such circumstances it would be for the jury to say whether he was justified in believing that he had plenty of time, or whether he should have looked again. Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278); Ablard v. Railway, 139 Mich. 248 (102 N. W. 741).

I do not think the court erred in receiving the testimony of Dr. Myers upon the ground stated in defendant’s brief.

The other points argued in the brief relevant to the charge of the court, so far as they have not been covered by what has been hereinbefore said, appear to me not to present prejudicial errors, but, on the contrary, the portions of the charge referred to were not unfavorable to the defendant.

The judgment is affirmed.

Steere, Moore, and Stone, JJ., concurred with Blair, J.