Kerr v. City of Detroit

• Decision Date: 05 October 1931
• Docket Number: No. 54.,54.
• Citation: 238 N.W. 190,255 Mich. 446
• Parties: KERR v. CITY OF DETROIT, DEPARTMENT OF STREET RAILWAYS.
• Court: Michigan Supreme Court

255 Mich. 446

238 N.W. 190

KERR

v.CITY OF DETROIT, DEPARTMENT OF STREET RAILWAYS.

No. 54.

Supreme Court of Michigan.

Oct. 5, 1931

Error to Circuit Court, for Wayne County; Ormond F. Hunt, Judge.

Action by William Kerr against the City of Detroit, Department of Street Railways. Judgment for the defendant, and the plaintiff brings error.

Affirmed.

Argued before the Entire Bench.

Payne & Payne, of Detroit, for appellant.

Raymond J. Kelly and Leo A. Sullivan, both of Detroit (A. Albert Bonczak, of Detroit, of counsel), for appellee.

BUTZEL, C. J.

On March 12, 1927, William Kerr, plaintiff, boarded a street car to go from his place of employment to the corner of Manchester and John R. streets in the city of Highland Park, Mich., where he was in the habit of changing cars for a Northwestern Belt car in order to proceed to his home. When he arrived at the place for changing cars, he found that the small ‘one-man’ car was about to start. The car has only one door, and is manned only by a motorman, who also acts as conductor. He saw plaintiff coming and held the car. Immediately upon his entering the car, it started around the curve. Plaintiff claims that, while he was taking his transfer ticket from his pocket and handing it to the motorman, the car was started. He lost his balance, and, in order to avoid falling, put out his hand at a place where the door closed, it being still open; that thereupon the conductor-motorman closed the door and caused plaintiff's fingers to be fastened either in the jamb or crack of the door; and that he thereby suffered serious damages to his fingers and also to his shoulder and back due to a fall.

He further claims that these were no straps with which to steady himself, nor any railing around the space reserved for the motorman, and that he had to reach out his hand in order to save himself from a serious fall. The door of the car swings and closes like an accordian. He testified that he was familiar with the car, had used it, or a similar one, many times; that he knew that the cars jerked when they started. He further claims that, after walking to his seat, he arose and had an altercation with the conductor.

The trial judge stated that the plaintiff had failed to show any negligence on the part of the defendant, the city of Detroit, department of street railways, which owns and operates the street cars. Thereupon, notwithstanding the fact that more than three years had elapsed since the time of the accident, plaintiff sought to add a count to the declaration to the effect that, after his hand was caught by the closing of the door, the motorman, instead of opening the door and thus releasing plaintiff's hand, shut the door more tightly and thus caused more severe injuries; that the failure to release the door, after discovering that plaintiff's hand was caught, constituted gross and wanton negligence. Plaintiff testified that this was due to the fact that the motorman became confused and pulled the door tighter instead of releasing it, and that it was not done intentionally. The trial judge held that the additional count stated a new cause of action against which the statute of limitations had run, as it had occurred more than three years previous to the filling of the new count to the declaration. The trial court directed a verdict in favor of defendant, and a judgment was entered accordingly.

Plaintiff admits the car was about to start when he entered it, that he was inside of the car when he offered the transfer to the conductor, but dropped it on the floor, that he knew that the door was open and that it would be closed after he boarded the car; that he was standing at the fare box before the car was started; that he knew that the car jerked and he was familiar with its operations. The doctrine of res ipsa loquitur does not prevail in this state. Neither will negligence be presumed, nor is the mere fact of an accident sufficient to impose a liability for negligence. Renders v. Grand Trunk R. Co., 144 Mich. 387, 390, 108 N. W. 368;Perry v. Railroad Co., 108 Mich. 130, 65 N. W. 608. Somewhat similar situations have been passed upon by this court. In Ottinger v. Detroit United Railway, 166 Mich. 106, 131 N. W. 528,34 L. R. A. (N. S.) 225, Ann. Cas. 1912D, 578, in affirming a judgment upon a directed verdict in a case where the plaintiff was injured shortly after she boarded a street car, we said: ‘It is a well-known fact that steam and street cars are not so stopped...