Anda v. Chi., D. & G. B. Transit Co.

• Decision Date: 16 July 1925
• Docket Number: No. 83.,83.
• Court: Michigan Supreme Court
• Parties: ANDA v. CHICAGO, D. & G. B. TRANSIT CO. et al.

231 Mich. 567

204 N.W. 761

ANDA

v.CHICAGO, D. & G. B. TRANSIT CO. et al.

No. 83.

Supreme Court of Michigan.

July 16, 1925.

Error to Circuit Court, Chippewa County; Louis H. Fead, Judge.

Action by Elvira Anda against the Chicago, Duluth & Georgian Bay Transit Company and others. Case discharged as to defendants George Kemp and others, copartners doing business as the Kemp Bros. Coal Company. Verdict for plaintiff as against defendant Chicago, Duluth & Georgian Bay Transit Company. From a judgment for the last-named defendant notwithstanding the verdict for plaintiff, plaintiff brings error. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Thomas J. Green, of Lansing (Frank P. Mies and Norman A. Beck, both of Chicago, Ill., of counsel), for appellant.

E. S. B. Sutton, of Sault Ste. Marie, and Gardner, Foote, Burns & Morrow, of Chicago, Ill. (Walter M. Fowler and Addison L. Gardner, Jr., both of Chicago, Ill., of counsel), for appellee Chicago, D. & G. B. Transit Co.

WIEST, J.

In August, 1922, plaintiff, then 29 years of age, purchased passage on the steamer North American from Chicago to Duluth and return. She was accompanied by her mother and sister. On the trip down from Duluth it was announced that a stop would be made at Sault Ste. Marie for an hour, and passengers might go ashore. The steamer tied up at the Kemp coal dock in Sault Ste. Marie about 5 o'clock p. m., the 11th of August, 1922, to take on fuel, the gang plank was placed to let passengers go ashore, and plaintiff, her mother and sister left the vessel and, following some of the other passengers, passed safely over tracks, by fuel piles, and down a plank from the dock to the ground, where a team road or way came to the dock from a public street. Along the side of this way was a narrow path, about 2 feet removed from the drive of the roadway and plaintiff, with her mother ahead, her sister next, and she in the rear, in single file, walked along the path toward the street, following the crowd. While so proceeding, a Ford truck, owned by defendants McKay and McDowell, came down the driveway from the street at a high rate of speed, deflected from the drive, and struck and severely injured plaintiff.

This suit was brought against the Chicago, Duluth & Georgian Bay Transit Company, owner of the steamship North American, the Kemp Bros. Coal Company, having control of the fuel dock, and McKay and McDowell, owners of the truck.

At the trial the court discharged the Kemp Bros., and submitted the issues against the Transit Company and McKay and McDowell to the jury. Verdict was rendered against the Transit Company for $17,916, and not guilty as to McKay and McDowell. Upon reservation of a motion to direct a verdict in favor of the Transit Company, the question was later presented of the right of the Transit Company to judgment non obstante veredicto. The circuit judge, notwithstanding the verdict, entered judgment in favor of the Transit Company. Plaintiff brings the case here by writ of error.

No error is assigned to the judgment, rulings, or charge of the court as to the other defendants.

Plaintiff was struck while she was at a point outside of the driveway and in a place of safety had not the truck left the drive. Was it negligence for defendant Transit Company to permit passengers to leave the vessel at the fueling dock and proceed across the dock, the tracks and fuel thereon, to a way used by trucks and teams, and along the side thereof to reach the public street? The character of the dock, with tracks thereon and fuel piled, was apparent to plaintiff, and she safely passed over and by the same.

When the vessel tied up at the coal dock and landed passengers, it was the duty of defendant Transit Company to bring notice to plaintiff of the proper way to the street, and, in the absence of such notice or direction to proceed in a particular way, plaintiff had a right to use any path or way which reasonably appeared to be designed and used as a way to the public street, and it was the duty of defendant Transit Company, in such event, to see that such way was reasonably safe. Defendant Transit Company, however, was not required to protect plaintiff from the unforeseen acts of third persons. There was no inherent defect in the way over which plaintiff was going to the street; neither was her use of such way shown to have been perilous by reason of surroundings. Except for the unusual tort...