Howell v. Lansing City Electric Ry. Co.

• Citation: 136 Mich. 432,99 N.W. 406
• Court: Supreme Court of Michigan
• Decision Date: 26 April 1904
• Parties: HOWELL v. LANSING CITY ELECTRIC RY. CO.

99 N.W. 406

136 Mich. 432

HOWELL v. LANSING CITY ELECTRIC RY. CO.

Supreme Court of Michigan

April 26, 1904

Error to Circuit Court, Ingham County; Howard Wiest, Judge.

Action by Sarah E. Howell against the Lansing City Electric Railway Company. There was judgment for plaintiff, and defendant brings error. Reversed.

Cahill & Wood, for appellant.

Frank L. Dodge and C. P. Black, for appellee.

HOOKER J.

The defendant's motorman lost control of the car he was in charge of, upon a grade on Washington avenue, in the city of Lansing. At the foot of the grade was a switch, and just beyond the switch the track turned upon Franklin avenue which is intersected by Washington avenue at that point. It was customary for cars to meet and pass at the switch, and as the uncontrolled car passed over or beyond the switch the other car was visible, approaching, on Franklin avenue, a few hundred feet distant, and was seen by the plaintiff across the corner. In her alarm she arose and started for the door and either went upon the platform and jumped from or was thrown from it, or, as her counsel claim, stood at the door and was thrown from the car as it turned the sharp curve in the road at the corner. The car proceeded until it collided with the other car. That she suffered a serious injury is not denied, but counsel for defense allege that it was due to her own want of care, which is claimed to have amounted to contributory negligence. The negligence charged was: (1) Allowing the car to be out of repair, whereby the brake was ineffective. (2) Putting the car in charge of an incompetent motorman. (3) Negligence of the motorman in managing the car.

There was testimony in the case that the brake rod had broken the day previous to that of the accident, and that it was repaired; that the brakeman had no reason to doubt the efficiency of the brake until he tried to use it, when it failed. There was another brake at the opposite end of the car. The motorman attempted to stop the car with this, but failed. So far as the proof indicates anything upon the subject, the motorman may have been justified in believing that the car could be stopped by the use of the brake. It was found after the accident that the brake rod was useless for want of a bolt. Evidence was given tending to show the degree of care which had been given to this car, and the failure of the repair to last more than 24 hours is some evidence of the character of such repair.

The defendant owed to its passengers a high degree of diligence and care in transporting them, and that involved the character of the rolling stock. It is not to be expected that a passenger can easily prove the exact particular in which the locomotive which draws his train is defective, or where the bridge which gives way with the train was weak, or the exact particular in which the company is wanting in diligence to prevent or avert a catastrophe. Therefore, in such cases the circumstances of the accident may sometimes justify an inference of negligence. This was a question which it was proper for the court to leave to the jury under the circumstances shown.

The same may be said of the competency and conduct of the motorman. There was testimony tending to show that the motorman did not know that he could stop the car by reversing the motor; that his tutelage had been brief; and, although there was proof showing the opposite, the question was one for the jury. Again, there was testimony tending to show that he did not turn off the current, and that he lost his judgment and did not know what to do in the emergency. The passenger is entitled to reasonable protection against all of these dangers, and it is not necessarily a defense that the motorman was confronted by an imminent and unexpected danger, whereby he lost his usual ability to control the car. While proper allowance should be made for such conditions, it is the duty of those who run cars and trains to put them in charge of competent men, and a reasonable degree of presence of mind may be an essential to competency.

Counsel contend that the conclusion is irresistible that plaintiff was not thrown from the car as alleged, but must have jumped from the car when in motion, and insist that there was therefore a failure to prove the case as alleged, and also that contributory negligence was proved. They say, further that, at all events, that question should have been left to the jury. We are not aware that anyone testified to seeing the plaintiff jump from the car. Miss Hazelton testifies that as the car swung rapidly around the corner its centrifugal force threw her against some one, while the evidence is strong that it was at this point that the plaintiff was thrown from or left the car, being thrown some 18 or 20 feet, as were several other passengers who jumped from the car. There was no occasion to submit the question of her jumping from the car, as there is no evidence showing it. We think the undisputed...