Blakeslee v. Consolidated St. Ry. Co.

• Decision Date: 10 March 1897
• Citation: 112 Mich. 63,70 N.W. 408
• Court: Michigan Supreme Court
• Parties: BLAKESLEE v. CONSOLIDATED ST. RY. CO.

70 N.W. 408

112 Mich. 63

BLAKESLEE v. CONSOLIDATED ST. RY. CO.

Supreme Court of Michigan

March 10, 1897

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action by Charles B. Blakeslee against the Consolidated Street-Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Kingsley & Kleinhans, for appellant.

Earle &amp Hyde, for appellee.

LONG C.J.

This case was in this court at the April term of 1895, was reversed, and remanded for another trial. The opinion filed is found in 63 N.W. 401. Judgment was reversed upon the ground that the trial court did not properly instruct the jury upon the question of the plaintiff's contributory negligence. Speaking of that charge, it was said in the majority 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 naturally 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, and unless he could have reasonably ascertained the fact from his seat in front of the barrels. In other words, the charge seemed 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 negligence, and the rule should be the same in this case. Whether or not this negligence contributed to the injury is another question, which we cannot determine, it being for the jury." Upon the second trial the case was submitted to the jury upon the theory stated in the opinion of this court.

It is contended by counsel for defendant that in the former record there was evidence that the car was run at a high rate of speed, and the plaintiff was upon the track when the car was 100 feet away; but that in the present record it appears that the car was not moving at an unlawful rate of speed, and was going to a slower rate than the ordinance authorized; and, again, that there was no evidence given on the trial that the car was from 30 to 50 feet away when the plaintiff turned upon the track. It is conceded that the present record does not show that the car was being driven to exceed six miles an hour. This was the testimony given by the motorman, Johnson. But it is contended that fact would tend more strongly to show that the plaintiff was not guilty of contributory negligence; for one might be negligent in driving upon the track when the car was approaching at the rate of 15 miles an hour if the car was in close proximity; while, if the car was running at the rate of only 6 miles an hour, he might not be guilty of negligence in driving upon the track. We think there is great force in this contention. From the plaintiff's testimony, it appears that he had traveled after turning upon the track, or at least within the line of the car on the track, something like 35 feet before he was struck. There was testimony on the present trial, given by Mr. Groskoff, that he saw the wagon turn towards the track, to go around Carbett's buggy, and at that time the car was from 30 to 50 feet north of the rear end of the wagon. It is apparent that this...