Balcer v. Pere Marquette Ry. Co.

• Decision Date: 03 April 1934
• Docket Number: No. 23.,23.
• Citation: 266 Mich. 538,254 N.W. 198
• Parties: BALCER v. PERE MARQUETTE RY. CO. et al.
• Court: Michigan Supreme Court

266 Mich. 538

254 N.W. 198

BALCER

v.PERE MARQUETTE RY. CO. et al.

No. 23.

Supreme Court of Michigan.

April 3, 1934.

Appeal from Circuit Court, Bay County; Samuel G. Houghton, Judge.

Action by Theodore Balcer, by Leo Balcer, his next friend, against the Pere Marquette Railway Company and another. A verdict was directed for both defendants, and plaintiff appeals.

Reversed as to defendant named, and affirmed as to codefendant.

Argued before the Entire Bench.

Kinnane & Manary, of Bay City, for appellant.

Albert W. Black, of Bay City (Howard D. Brown, of Detroit, of counsel), for appellee John A. Andrzejewski.

W. K. Williams and John C. Shields, both of Detroit (Clark & Henry, of Bay City, of counsel), for appellee Pere Marquette Ry. Co.

FEAD, Justice.

December 30, 1930, about 7:15 p. m., plaintiff, fifteen years old, was injured in a collision between a Ford truck, driven by Chester, fifteen year old son of defendant Andrzejewski owner of the truck, and defendant railway company's freight train, in the city of Bay City. Plaintiff was a guest passenger. He charged Chester with gross negligence and the company with ordinary negligence. The court directed verdict for both defendants on the ground that Chester was guilty only of ordinary negligence and that it was the sole proximate cause of the collision.

Plaintiff and Chester were going skating. Chester drove at a speed of 45 miles per hour. They went 61 blocks and then turned west into Cass avenue, about 4 1/2 blocks from the railway track. The pavement was icy in spots and dry in spots. At some time before reaching the turn plaintiff told Chester not to drive so fast, but the latter said he was in a hurry. At one point he swung out to pass children playing in the street. After turning into Cass avenue, and when about 300 feet from the track, Chester swung to the left to avoid children skating in the street and swung back to the right. A freight train was coming from the north. When 30 feet from the track, Chester evidently saw the train, as he applied the brakes. The street was icy at that place, and the truck skidded into the train, striking the locomotive and injuring plaintiff.

Chester did not testify. Plaintiff said that, after they passed the children, as well as before, he saw that the railway crossing gates were up and he did not see the train until immediately before the collision. Because the gates were up, he thought the way was clear and did not look for a train. However, he testified that, when a block and a half from the track, he called Chester's attention to it, and suggested that he have his car under control.

The gross negligence charged against Chester was in driving at an excessive rate of speed on an icy pavement. The pavement was not icy in all places. One of the witnesses was testing his brakes on the street. There was no evidence that the truck had skidded or slipped because of the ice prior to the collision, nor that Chester had had any trouble in dodging the children or with traffic. The speed was excessive because it was...