Burt v. Detroit, G. H. & M. Ry. Co.
| Decision Date | 02 March 1933 |
| Docket Number | No. 121.,121. |
| Citation | 262 Mich. 204,247 N.W. 157 |
| Court | Michigan Supreme Court |
| Parties | BURT v. DETROIT, G. H. & M. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County; Robert M. Toms, Judge.
Action by Lawless Burt, a minor, by Dorthula Burt, his guardian, against the Detroit, Grand Haven & Milwaukee Railway Company. Judgment for defendant, and plaintiff appeals.
Reversed, and new trial granted.
Argued before the Entire Bench.
Edward N. Barnard, of Detroit, for appellant.
H. V. Spike, of Detroit, for appellee.
Plaintiff, a boy eight years and four months old, possessed of all his faculties, bright and intelligent, familiar with the place and knowing the danger, attempted to cross the railroad tracks of defendant, and was struck and injured by a train.
The railroad tracks are on the line between the cities of Detroit and Hamtramck, and run north and south. Woodland street of Detroit ends at the right of way, and nearly opposite, and on the east side of the right of way Woodland street of Hamtramck begins. The right of way occupied by several tracks between the two ends of the streets is right of way, not street. However, in this thickly populated district, pedestrians, for a long time, and in very considerable numbers, have crossed the tracks almost as though the streets were continuous. The record is that defendant has passively suffered the practice, perhaps being powerless to prevent it.
In plaintiff's behalf there was some testimony that he and his younger sister were on their way to school at noon; that leaving his sister on the west side of the right of way he crossed to the east side to see if it was safe to cross; that a train passed; that when about to return he saw some cars to the south, did not notice that they were moving; that he started back, and when he reached the second or third tracks he saw the cars almost upon him; that he attempted to escape, fell, and the cars cut off a leg. There is some further testimony that the cars were being pushed ahead of the locomotive, 33 to 35 cars in the train with the locomotive near the middle of it, and that there was no lookout at the head of the train. There is a bit of testimony that the whistle was not sounded, and some purely negative testimony that the bell was not ringing. On the other hand, defendant had testimony of employees and convincing testimony from disinterested witnesses to the effect that the locomotive was at the head of the train, and that the boy was beside the moving train attempting to hook cars, and that he thus fell and was injured. There was further testimony that the boy was injured by a certain car wheel well back in the train; that the bell was ringing and that proper lookout was kept. The declaration counts upon so-called ordinary negligence as distinguished from last clear chance. Plaintiff had verdict and judgment, and, upon decision of a reserved motion to direct, defendant had judgment, Plaintiff has appealed. Defendant has also assigned errors for consideration in case the order of the trial court of judgment notwithstanding the verdict be not sustained.
Although the motion is for judgment notwithstanding the verdict, not for new trial, one of the grounds is that the verdict is against the great weight of the evidence. Conceding that it should be so held, the matter cannot be here decisive. The weight of authority no doubt is that there is no object in permitting a jury to find a verdict which the court would set aside as soon as found. 38 Cyc. 1572. But this court, in common with courts of some other jurisdictions, adheres to the rule that a verdict cannot be directed properly where the evidence presents an issue of fact. Charon v. Roby Lumber Co., 66 Mich. 68, 32 N. W. 925; Weyburn v. Kipp's Estate, 63 Mich. 79, 29 N. W. 517, are but two of the many cases which might be cited. And the decision of the reserved motion to direct is but a decision as upon ...
To continue reading
Request your trial
-
Turner v. Mut. Ben. Health & Accident Ass'n
...Co. of Maryland v. Verheyden, 243 Mich. 544, 220 N.W. 750;Vandenberg v. Kaat, 252 Mich. 187, 233 N.W. 220;Burt v. Detroit, G. H. & M. Ry. Co., 262 Mich. 204, 247 N.W. 157;Strausser v. Sovereign Camp of the Woodmen of the World, 283 Mich. 370, 278 N.W. 101; and Forman v. Prudential Ins. Co.,......
-
Fitzcharles v. Mayer
...v. Detroit Stove Works, 103 Mich. 124, 61 N.W. 532;Yacobian v. Vartanian, 221 Mich. 258 190 N.W. 641;Burt v. Detroit, G. H. & M. Ry. Co., 262 Mich. 204, 247 N.W. 157. There was no proof plaintiff's having four persons in the seat had any causal connection with the collision. Syneszewski v. ......
-
Beasley v. Grand Western R. Co.
...Defendant alleges that it was not required to give an advance signal at the crossing in question, citing Burt v. Detroit, G H & M R Co., 262 Mich. 204, 247 N.W. 157 (1933), and Wavle v. Michigan U R Co., 170 Mich. 81, 135 N.W. 914 (1912). In Burt it was held "As the path across the tracks w......
-
Bakhuyzen v. National Rail Passenger Corp.
...and villages." M.C.L. § 466.13; M.S.A. § 22.272. The cited statute does not apply to private crossings. Burt v. Detroit G.H. & M. Ry. Co., 262 Mich. 204, 247 N.W. 157 (1933). Amtrak and Chiles are correct in their assertion that the statute is not applicable. They have not, however, respond......