Blakeslee v. Consolidated St. Ry. Co.
| Decision Date | 28 May 1895 |
| Citation | 63 N.W. 401,105 Mich. 462 |
| Court | Michigan Supreme Court |
| Parties | BLAKESLEE v. CONSOLIDATED ST. RY. CO. |
Error to circuit court, Kent county; Allen C. Adsit, Judge.
Action by Charles B. Blakeslee against Consolidated Street-Railway Company for personal injury. From a judgment for plaintiff defendant brings error. Reversed.
Kingsley & Kleinhans, for appellant.
Earle & Hyde, for appellee.
The plaintiff, while driving a team attached to a load of barrels on a narrow street, turned his team upon the track of the defendant's trolley road, to pass a carriage standing by the roadside. As the front wheel of the wagon was brought upon or near to the westerly rail of the track, the load was struck upon the side, near the front, by defendant's car whereupon the plaintiff's team ran away, and he was injured. He recovered a verdict in an action for negligence and the defendant has appealed. The principal questions raised arise over the claims of defendant's counsel that (1) plaintiff's contributory negligence conclusively appeared; (2) if not, the court erred in his instructions to the jury upon that subject.
The evidence showed that the plaintiff sat in front of his load of barrels, which was 28 feet long, and 12 to 14 feet wide at the top, and that he occupied a position from which he could not see what was behind without moving to the edge of the load; that, without doing so, he turned his horses upon the track, to pass a vehicle, and was struck, as already stated. The testimony varied as to the distance between the wagon and the approaching car, one witness putting it about 100 feet; others, as low as 10 or 15 feet. It is contended that the evidence demonstrates the proposition that the car must have been so close when the plaintiff turned upon the track that it could not be stopped, and therefore that it should be held, as matter of law, upon established facts, that the plaintiff was negligent in turning upon the track in front of a rapidly approaching car, and that the defendant was not negligent. We are unable to say that the evidence is conclusive in this regard. In a crowded thoroughfare, where there are four tracks upon which cars are passing at intervals of four minutes, caution is necessary upon the part of all who use the street; and whether an accident is caused by the neglect of one or two parties must usually be a question of fact where, as in this case, the witnesses do not agree as to material circumstances. The use of electric cars involves, as it was intended it should, rapid transit. More or less time is required to stop them. They have the right of way, within reasonable bounds; and other travelers, by ordinary methods, owe the duty of making way for them without unnecessary or unreasonable delay. Of necessity, ordinary vehicles must be permitted to drive upon and cross the tracks when the cars are at a reasonably safe distance, and the railway company is in duty bound to keep a sharp lookout, and use prompt measures to prevent accidents when danger threatens. But persons should not pass upon a track without using some precaution to ascertain whether danger is imminent. The case of McGee v. Railway Co. (Mich.) 60 N.W. 293, is a case in point. In that case a pedestrian looked in one direction, but not in the other, before stepping upon the track, when by doing so he would have seen the lights of the approaching car. In the more recent case of Fritz v. Railway Co. (Mich.; decided April 16, 1895) 62 N.W. 1007, it was held that one riding in a covered carriage, and thereby prevented from looking behind, could not recover against the street-car company, when he turned suddenly upon the track, in front of a car, and was injured. From these cases it appears that it is negligent to go upon a track without taking some precautions to ascertain whether it is safe, and that a person cannot avoid this by placing himself in a position where he cannot easily see an approaching car. The defendant did this thing; and if the car was so close that it can be said to have been an imprudent thing to do, if ordinarily prudent persons, knowing the whereabouts of the car, would not have thus turned upon the track, his act was negligent, and should preclude a recovery, if it contributed to the injury. The charge of the court seems to qualify this duty to look for an approaching car by making it depend upon his convenience. After stating that he was not a trespasser upon the track; that the street-car company had only an easement, and had no exclusive right to travel upon its tracks; and that it was bound to take the same care in preventing collisions as the driver of a wagon,-he added, "But the plaintiff would not have the right to drive into apparent danger, such as would be in the face of an approaching car, if he knew, or could have reasonably ascertained, that fact, under the circumstances in which he was placed." And again he said: "If, under all the circumstances of the case, considering the wagon and rack that the plaintiff was using, the manner in which it was loaded, the place upon the rack where plaintiff was sitting, the team he was driving, the obstruction in plaintiff's way (if you find that there was such an obstruction, and that he could not pass around it, without going upon or near the track, within the space that would be occupied by a car thereon), taking these and all the other circumstances of the case, as they appear from the evidence, into consideration, if plaintiff was acting in the exercise of ordinary care, as a prudent and careful person, and was injured through the negligence of the defendant in not stopping its car or retarding its speed, if by so doing in a prompt, prudent, and careful manner, the injury to the plaintiff, if any, would be prevented, the defendant is liable in this action." And again he said: "The fact that plaintiff's wagon appeared to be on or within the line of the track, when struck, is not of itself conclusive evidence of negligence, for he had a right to be there, unless the car of defendant was at the time threateningly near to the part of the track where plaintiff was, and he had, by the exercise of ordinary prudence, the means of knowing of the immediate approach of such a car." "While it is lawful, and not negligence, to drive a wagon along upon the rail, or between the rails, of an electric street-railway track, when such part of the track is not in use by cars, and none are near the immediate vicinity, yet I charge you that it is negligence in the driver of a wagon, after he has been traveling and going to the side of such a street-car track, to turn his vehicle from the roadway by the side of the track, over and upon the street-car track, in front of a motor car, which is approaching from behind, and proceeding at a lawful rate of speed, in full view, and could have been seen by the driver if he had looked out for it, and was so near by that the moving car will necessarily collide with the wagon, unless the motorman, by extremely prompt and vigorous action, at once takes quick measures to bring his car to a standstill within the shortest time possible." He concluded his discussion of the question as follows: In our opinion, this naturally tended to give the
jury to understand, that turning suddenly upon the track, in front of an approaching car, so close that a collision would necessarily ensue, unless the motorman, "by extremely prompt and vigorous action, should prevent," would not be contributory negligence, unless the plaintiff knew that the car was only a few feet away, or unless he could reasonably have ascertained the fact from his seat in front of the barrels. In other words the charge seems to imply that a man may place himself in any position that his convenience or the exigencies of his calling may require, and drive upon the track, without taking correspondingly greater precautions than would be necessary if in an open wagon; relying upon the proposition that he has the same right there that the car has, and that the motorman is required to avoid the collision. The evidence shows that the plaintiff made no effort whatever to ascertain whether a car was coming or not. In the case of a covered milk wagon, this was held to be negligent, and the rule should be the same in this case. Whether or not his negligence contributed to the injury is another question, which we cannot...
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