DocketNumber: Docket No. 28
Citation Numbers: 177 Mich. 481
Judges: Bird, Brooke, Kuhn, McAlvay, Moore, Ostrander, Steere, Stone
Filed Date: 11/3/1913
Status: Precedential
Modified Date: 9/8/2022
(dissenting; after stating the facts). We are of opinion that the action of the court below was warranted by decisions of our own court. We pass the question raised by defendant that a verdict for plaintiff is not warranted because it must of necessity be based wholly upon conjecture; there having been no eyewitness of the tragedy. We likewise pass the question of defendant’s negligence. It may be said, however, in passing, that, if defendant operated its cars on the night in question as detailed by the witness Monarch, such operation would at least raise a question of fact as to defendant’s negligence.
Was plaintiff’s decedent guilty of negligence as a matter qf law? There having been no witness to his death, due care on his part is to be presumed. This presumption must take the case to the jury unless the
In the case at bar, the defendant’s right of way across Warren avenue was covered with a network of ten tracks. Plaintiff’s decedent was a man 34 years of age and had lived in the vicinity for four years. There was an arc light in the middle of the street, 60 feet distant from the track upon which he was killed. It was a light night. Switching operations were being carried on by an engine, with a constantly ringing bell, somé three or four hundred feet away. These operations were in full view of decedent when he reached a point 40 feet distant from Wilson’s siding. .
In addition to the foregoing, it is undisputed that Witness Squires stood at the southerly end of the “drag” of cars, two or three car lengths south of the south sidewalk on Warren avenue, with a lighted-lantern with which he signaled, the switch engine to back up. It was at the time this coupling was made and the cars pushed north that decedent lost his life, according to all the testimony. Of course, if decedent attempted to go under or between the cars while they were coupled together and completely blocking the ■highway, he would be guilty of such negligence as would preclude his recovery. We think it would be negligence equally culpable for him to attempt to pass through the opening described by the witness Monarch, when Squires stood in plain view within 100 feet of him, signaling with a lantern, and an engine with its bell ringing approaching in plain view from the south. Gardner v. Railroad Co., supra; Brandy v. Railway Co., 107 Mich. 100 (64 N. W. 1056); Lau
Judgment should be affirmed.
The conclusion of- Mr. Justice Brooke that the deceased was guilty of contributory negligence appears to me to be at variance with the testimony of the witness Monarch. ¡ He is the only witness who throws any light on the manner in which the deceased came to his death. He testified in part as follows:
“There are several Detroit, Grand Haven & Milwaukee tracks that cross Warren avenue and Dequindre street. As I walked towards Dequindre street, on the south side of Warren avenue, I -noticed cars on the tracks. I could see an opening right through. The open way was on the south side of Warren avenue. They were freight cars. This was after 1 o’clock. The section north was pretty close to the sidewalk; that is, they came pretty close to the north side of the sidewalk. The People’s Ice Company is on the south side of Warren avenue, right beyond Dequindre. As I walked along Dequindre street I passed and I was between the fire tower and the engine room and I heard a voice, and when I heard that voice I looked around and I heard a crash of cars and when I got to the— The crash came right after I heard some one holler. At that time I was on the sidewalk about 100 feet west from where these cars came together. After I heard this scream or holler and the cars came together, I walked out to the car and waited for it to pass, and I stood there about two seconds and I looked down and saw a body under the car — saw the body lying there. * * *
“Q. Now, was there any light on the cars that was standing still or on the end of the car that crashed into the cars that were standing still?
“A. No, sir; there was not.
“Q. Were there any trainmen where these two cars came together at the time they came together?
*489 “A. No, sir; there was not.
“Q. Was any whistle blown before these cars came together ?
‘A. No, sir. * * *
“Q. Was the bell of the locomotive ringing?
“A. No, sir; I did not hear the bell ringing.”
A fair inference to be drawn from this testimony is that there was an opening between the cars on the south side of Warren avenue and that the deceased attempted to pass between and was knocked down and run over by them. If the cars were cut at the sidewalk, and there were no trainmen in the immediate vicinity, nor lights displayed, nor signals being given, which would indicate that the cars were about to be moved, the deceased was not guilty of contributory negligence, as a matter of law, in attempting to pass between them. In streets passing through railway yards it is not uncommon for cars to be left standing near the sidewalk; and, where there is nothing to indicate that they are being “switched,” pedestrians do not usually hesitate to pass between them.
The testimony of the witness, considered in connection with the rule that no presumption of negligence can be indulged against the deceased, persuades me that his negligence was a question for the jury and not for the court.
The judgment should be reversed and a new trial granted.