DocketNumber: Docket No. 8
Citation Numbers: 206 Mich. 214
Judges: Bird, Brooke, Kuhn, Moore, Ostrander, Steere, Stone
Filed Date: 5/29/1919
Status: Precedential
Modified Date: 9/8/2022
On February 1, 1915, at about 7:30 o’clock in the evening, plaintiff’s intestate, a man 62 years of age, was struck by an interurban car of the Detroit, Jackson & Chicago Railway Company at the intersection of Michigan avenue and Twenty-fourth street in the city of Detroit and received injuries which resulted in his death. Plaintiff, as administrator, brought this action under the survival act against the Detroit United Railway and the Detroit, Jackson & Chicago Railway Company and obtained a verdict
“I do not remember. I don’t remember whether it was a minute or two minutes or three minutes before that time I wiped the snow off the glass. Wiping that glass off was a very frequent occurrence because of the storm.”
He further testified that on account of the darkness he had to depend upon the gong all the time to warn people; that he would consider it dangerous to run the car that night without ringing the gong, even if going at a speed of only five miles an hour; that in the condition the tracks were that night, a car traveling at a speed of five miles an hour could not, even in an emergency, have been brought to a stop in less than 100 feet, nor an ordinary stop made in less than
“There wasn’t any headlight. The car was just twenty-five feet away from the man, and I was watching him crossing the street.
“Q. When that man went on the first rail, how far was the street car from him?
“A. I couldn’t see no street car. When I first saw the street car, the man was just stepping over the last track. The man was between the third and fourth rails when the car was just 25 feet away from him. He was right in the middle between these tracks when I first saw the car 25 feet away. The store lights did not go out at the same time the street lights went out. I couldn’t see no lights in the car, only when the car passed by me. I didn’t hear this car. It didn’t make any noise. I never saw a big interurban car passing there before that didn’t make a noise.
“Just as he was between the third and fourth rail I turned my head to see if there was any car coming, or hear any car coming. I didn’t hear no car coming. I was watching this man go across because he was an old man, and the road was slippery, and I thought he would slip or something. Right in the tracks there was sort of slippery. I was watching to see if any car would be coming, or if he would be hit by a car. I didn’t see any car coming. Then I saw a car about 25 feet away, when he was between the third and fourth rail. * * *
“Q. You say you couldn’t see west but 25 feet?
“A. Couldn’t see anything very distinctly over 5'0 feet is what I said. As. there was no headlight on this car, I said you couldn’t see it only about 25 feet from, the man. You could see east all right, but you couldn’t see west. There was no lights up there, the way the car was coming. The lights from the theater lit up the place where the accident happened.”
The action of the learned trial judge in entering the judgment notwithstanding the verdict was based upon his finding that the evidence showed conclusively that plaintiff’s intestate was guilty of contributory negligence.
"It is gathered from the testimony of the plaintiff and his witnesses that the night in question was a dark and stormy one, that the car was being operated at a high rate of speed, without a headlight, and that no warning was given as it approached the intersection of the avenues. It further appeared that there was no street light at the intersection. Under this state of facts, we do not think it should be said, as a matter of law, that plaintiff was not in the exercise of ordinary care in attempting to go across the track. That question was one of fact to be determined in view of all the circumstances by the jury. In determining the question, it was proper for the jury to consider to what extent the storm and darkness might have prevented him from discovering the car in season to avoid it, and it was likewise proper for them to consider to what extent the failure to have a headlight in the usual position on the car might have misled him, and also to consider whether his lack of appreciation of the danger he was in was due in any manner to the failure of defendant to do thé usual thing and sound the gong as the car approached the intersection.
_ "Notwithstanding the presence of all these conditions, as is urged by defendant, it would seem as though plaintiff ought to have seen or heard the car approaching if he took the precaution which he testified he did before attempting to go upon the track; but whether he did the thing which ordinarily careful and prudent men would do under similar circumstances is a question which is not within our province to decide. Wavle v. Railways Co., 170 Mich. 81 (Ann. Cas. 1914B, 149).”
The facts in the instant case correspond very closely. In each case the injured person stopped and looked just before going upon the track. But there is one important difference. In the Bady Case plaintiff had but a single track to cross, while in the case at bar the accident happened on the farther of the two tracks in the street and deceased stopped to look only before
“It appears conclusively from the above that decedent made his observation to see whether or not it was safe to cross when at a point 2 feet north of north rail of west bound track — then proceeded to cross. * * * He therefore walked nearly 12 feet after making his observation — onto the tracks immediately in front of oncoming car, and was hit, without looking again — and that too on a stormy, sleety night, when according to. the testimony of his witnesses it was dark — street lights out — 7:30 at night. * * * His observation may have been all right so far as the west bound track was concerned, * * * but unfortunately for him the east bound track was fraught with just as much danger. * * * When there are double tracks upon the street, there are two danger zones. * * * and he can’t escape the imputation of negligence in approaching the eastbound track by claiming he made the proper observation when approaching the westbound track.”
And again:
“The worst storm of the winter was raging. The city lights, according to defendant’s witnesses, had temporarily gone out; it was snowing and sleeting; it was night time and one could not see as far as usual. All these factors would have some bearing on decedent’s contributory negligence, as the care incumbent upon him in crossing the street would be commensurate with the unusual elements which he had to contend with. These obstacles then only increased the care which he should have used — not diminished it.”
While it is true that the increased peril rendered greater precaution necessary, it is. also true that the confusion and bewilderment produced by the darkness and the storm introduces an element of uncertainty into the attempt to arrive at a judgment as to how an ordinarily prudent and careful man would
“He was looking down, watching where he was walking, I should judge.”
A person, without turning his. head perceptibly, can, if attentive, usually, detect the approach of a car or vehicle at some little distance, and there is room for the inference, from decedent’s conduct and his surroundings, that his mind was on the alert and that he was listening and attentive, trying to catch any warning of danger from either direction. Under the special circumstances of this case, we are of the opinion that it cannot be said that the plaintiff’s decedent was guilty of contributory negligence as a matter of law.
We are therefore constrained to hold that the circuit judge erred in setting aside, the verdict of the jury and entering a judgment non obstante veredicto• in favor ofythe defendant. This order will be reversed, and judgment should be entered in accordance with the verdict of the jury as rendered, with costs to the appellant.