Crase v. City of Detroit

• Decision Date: 29 November 1954
• Docket Number: No. 10,10
• Citation: 67 N.W.2d 93,341 Mich. 132
• Parties: Charles CRASE, Plaintiff-Appellee. v. CITY OF DETROIT, a municipal corporation, Department of Street Railways, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 93

67 N.W.2d 93

341 Mich. 132

Charles CRASE, Plaintiff-Appellee. v. CITY OF DETROIT, a municipal corporation, Department of

Street Railways, Defendant-Appellant.

No. 10.

Supreme Court of Michigan.

Nov. 29, 1954.

James S. Shields, A. Albert Bonczak, David Grainer, Detroit, for defendant and appellant.

Cronin & Cronin, Detroit, for plaintiff and appellee.

Before the Entire Bench.

BUSHNELL, Justice.

This action arose out of an accident which occurred at the Capitol Park loading station of defendant Department of Street Railways of the City of Detroit, about noon on Saturday, December 29, 1951.

The 'station' is located on the westerly side of Griswold street and extends in a northerly and southerly direction between State street and Grand River avenue. It is approximately 300 feet in length and 7 feet in width, and is inclosed. Admission is gained through entrances lacated at the north and south. The west side of the station is separated from the right of way by a wire fence, in which are certain openings through which passengers board the DSR buses.

Plaintiff Charles Crase, a carpenter employed in a downtown office building, arrived at the loading station about 12:05 p. m., paid his fare, and entered through the south gate for the purpose of boarding a Seven Mile Road bus. Upon his arrival there were only 3 or 4 other passengers in the station, but when his bus arrived some 40 minutes later the area in the Seven Mile Road loading entrance was completely filled with passengers. Crase was standing against a post about 1 1/2 feet from the loading opening when the bus pulled into the station, and immediately the crowd surged forward, pushing him through the entrance and into the space between the bus and the wire fence. He tried to maintain his equilibrium and follow along with the moving vehicle, but lost his footing on the icy right of way and fell under the wheels. As a result, he suffered serious injuries.

The only eyewitness testimony produced at the trial was that of plaintiff and the bus driver, Bernard Wall, who was called by the plaintiff as an adverse witness. The remainder of the testimony was that of plaintiff's wife and several attending physicians regarding the conditions which resulted from the injury and operations.

No testimony was offered by the defendant, it having relied upon its motion for a directed verdict. This motion, which was taken under advisement, was denied and the matter submitted to the jury, which returned a verdict of $56,350 in favor of plaintiff. On a motion for new trial, a remittitur of $15,350 was ordered, which was accepted, and a new trial was denied.

The 4 questions raised on appeal are accepted by the plaintiff. In support of the first contention that defendant was not guilty of actionable negligence and hence entitled to a directed verdict, the general rule stated in 13 C.J.S., Carriers, § 695, page 1299, was cited with supporting authorities. This general rule that a carrier is not liable for injury to a passenger caused by crowding and jostling of others is qualified by the phrase:

'unless the conduct of such other passenger is unusual and disorderly and could be prevented by the employees in charge, or unless the carrier has reason to expect a large number of passengers, and fails to use due care to provide sufficient guards or otherwise to protect passengers from injury by crowding.'

According to the testimony the loading station is usually crowded at this hour on every Saturday, and the bus driver (Wall) testified that Saturday noon is always a rush hour. Under these facts, in view of the holding in Counsineau v. Muskegon Traction & Lighting Co., 145 Mich. 314, 108 N.W. 720, the trial court properly submitted the question of defendant's negligence to the jury.

In discussing the ordinary and reasonable care that a carrier must exercise towards passengers using its stations and approaches, the court said in Thurkow v. City of Detroit, 292 Mich. 617, at page 621, 291 N.W. 29, at page 30:

'Ordinary care is commensurate with, and in proportion to, the extent that the carrier should have reasonably anticipated or known of hazards and dangers towards invitees entering upon its premises. Anda v. Chicago, D. & G. B. Transit Co., supra (231 Mich. 567, 204 N.W. 761); Kelly v. Manhattan Railway Co., 112 N.Y. 443, 20 N.E. 383, 3 L.R.A. 74. We cannot say plaintiff failed to establish a prima facie case. The happening of the accident alone is no evidence of negligence. Elsey v. J. L. Hudson Co., 189 Mich. 135, 155 N.W. 377, L.R.A.1916B, 1284; A. J. Brown & Son, Inc., v.City of Grand Rapids, 265 Mich. 465, 251 N.W. 561. But if the attendant circumstances are sufficient to take the case out of the realm of conjecture and within legitimate inferences from established facts a prima facie case is established. Burghardt v. Detroit United Railway, 206 Mich. 545, 173 N.W. 360, 5 A.L.R. 1333; O'Donnell v. Lange, 162 Mich. 654, 127 N.W. 691, Ann.Cas.1912A, 847; Macres v. Coca-Cola Bottling Co., Inc., 290 Mich. 567, 287 N.W. 922.'

See, also, Sheldon v. Flint & Pere Marquette R. Co., 59 Mich. 172, 26 N.W. 507; Good v. Michigan Farm & Industrial Fair, Inc., 270 Mich. 543, 259 N.W. 149; and annotation in 32 A.L.R. 1315; 155 A.L.R. 634.

Defendant contends that plaintiff was guilty of contributory negligence as a matter of law. This same argument was made in the Cousineau case and defendant there argued much along the lines that are followed by defendant here. We shall not repeat the reasoning of the Cousineau case [145 Mich. 314, 108 N.W. 721], except to point out that the place where passengers were loaded, like the place here, was under the complete and exclusive control of the defendant. Those who entered were patrons of the company and were there by its invitation and for its profit; and

'* * * it was a fair implication it would afford them reasonably safe grards from danger while on its ground * * *. There is no testimony indicating plaintiff attempted to board a moving car. * * * At most, it would present a...