Fish v. Grand Trunk Western Ry.

• Decision Date: 09 November 1936
• Docket Number: No. 19.,19.
• Citation: 275 Mich. 718,269 N.W. 568
• Parties: FISH v. GRAND TRUNK WESTERN RY.
• Court: Michigan Supreme Court

275 Mich. 718

269 N.W. 568

FISH

v.GRAND TRUNK WESTERN RY.

No. 19.

Supreme Court of Michigan.

Nov. 9, 1936.

On rehearing.

Former opinion affirmed.

For former opinion, see 275 Mich. 273, 266 N.W. 349.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.

Argued before the Entire Bench.

Frank Schwartz, of Detroit, for appellant.

H. V. Spike and William W. MacPherson, both of Detroit, for appellee.

SHARPE, Justice.

The facts in this cause were stated in 275 Mich. 273, 266 N.W. 349, to which reference is made. When the cause came on for trial and at the close of plaintiff's proof, the defense made a motion for a directed verdict upon the theory that the record disclosed no positive act of negligence in placing the protruding object nor facts showing actual or constructive notice of the claimed projection. The trial court granted the motion, from which plaintiff appealed.

Citation of authority is unnecessary to substantiate the rule that if plaintiff is to recover in this action he must prove defendant guilty of negligence and himself free from contributory negligence. The mere occurrence of an accident does not raise a presumption of negligence, and the burden of proof remains with plaintiff and does not shift. Weaver v. Motor Transit M. Co., 252 Mich. 64, 233 N.W. 178;Kerr v. City of Detroit, 255 Mich. 446, 238 N.W. 190. So also, when a trial court directs a verdict in favor of defendant at the close of plaintiff's case, it must be assumed that the facts as brought out by the plaintiff are established. Grand Trunk R. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485;Johnson v. Union Carbide Co., 169 Mich. 651, 135 N.W. 1069;Ballance v. Dunnington, 241 Mich. 383, 217 N.W. 329, 57 A.L.R. 262.

The rights of trains and pedestrians at railway crossings are well stated in Kelly v. Michigan Central R. Co., 65 Mich. 186, 31 N.W. 904, 905,8 Am.St.Rep. 876, where the court said: ‘The railroad company is the owner of its right of way, and has the right of passage and of use, in the ordinary manner, of its tracks at highway crossings. Likewise do the public have a right of way and of passage across the railroad track to be used and enjoyed in the ordinary manner. These rights are, in a sense, reciprocal, and must be exercised with a due regard to the rights of each other.'

In the case at bar plaintiff was not a trespasser upon railway property. He was using the crossing for the purpose of passage and had stopped a sufficient distance from the tracks to permit the train to pass without endangering his person. Plaintiff had a right to expect that the railway company would be using its tracks in the ordinary manner. The question of whether plaintiff was guilty of contributory negligence in standing so close to the railroad tracks and in not keeping his eyes continuously on the approaching train was for the jury. It cannot be said that plaintiff was guilty of contributory negligence as a matter of law.

The sole question on rehearing is whether plaintiff made out a prima facie case for the jury as to the negligence of defendant. We have carefully examined the record and conclude that sufficient facts were shown that would present a jury question as to defendant's negligence. While the doctrine of res ipsa...