Boick v. Bissell

• Decision Date: 18 April 1890
• Citation: 80 Mich. 260,45 N.W. 55
• Court: Michigan Supreme Court
• Parties: BOICK v. BISSELL.

45 N.W. 55

80 Mich. 260

BOICK v. BISSELL.

Supreme Court of Michigan

April 18, 1890

Error to circuit court, Wayne county; GEORGE GARTNER, Judge.

Corliss, Andrus & Leete, for appellant.

Henry M. Duffield, for appellee.

MORSE J.

This is an action to recover damages for personal injuries to plaintiff alleged to have been received through the negligent driving of defendant's servant. The circuit judge directed a verdict for the defendant. This was error. The case should have been submitted to the jury upon the question of the negligence of defendant's driver, and also as to the contributory negligence of plaintiff. No testimony was offered on the part of the defendant. The facts, as shown by the plaintiff and his witnesses, were substantially as follows: The plaintiff, a teamster, was hauling lumber on the 17th of December, 1887 from the depot of the Detroit, Grand Haven & Milwaukee Railway Company, at Detroit. Teams go in and out from the depot in a drive-way from At water street. The drive-way is about 25 feet wide from the platform of the freight sheds at the depot to the car tracks. The north side of the drive-way adjacent to the tracks, is devoted to the loading of freight directly from the cars. The plaintiff drove his wagon to the north side of the drive-way, occupying a space from five to eight feet of the same, and was loading lumber from the cars upon his wagon, which was about five feet wide. He had put on a small load of lumber, and was engaged in binding his load at the time of the injury. His horses were facing to the west, and he stood between the hind and forward wheels winding the chain around the wagon reach, or using the chain for the purpose of tightening and securing his load, at the time he was hurt. He came around from the front of his horses to bind the load, and, as he so came around, saw the defendant's team coming. Bissell's team was drawing a heavy freight truck, loaded with from 40 to 50 bags of clover seed, weighing about 180 pounds each. The driver sat upon the top of the load, and in front. This truck was loaded upon the other side of the drive-way, from 75 to 150 feet away from plaintiff, and while loading the team was faced to the east. When the load was completed, the driver turned his horses around, and drove out past plaintiff. Defendant's team was 10 or 12 feet east from plaintiff's wagon when he first saw it. He stood, as it passed, with his face to his own wagon, and his back to defendant's truck, and within two or three feet of his wagon, and was stooping over, or bending forward, engaged in tying his chain or in binding his load. There was plenty of room for Bissell's team to pass without injuring plaintiff, and it would have done so, as plaintiff claims, if the driver had not swerved from his course in towards the plaintiff. His foot was caught by the hind wheel, and he was thrown down between the vehicles, severely injuring both legs. The truck of defendant was not over eight feet wide. The hind wheels were six inches wider than the forward wheels. The plaintiff testified that if defendant's driver had driven in a straight line from where he first saw him he would not have touched him. He was asked if he had so driven how far the truck wheels would have come from his feet. He was not allowed to answer the question, which was a proper one. It was shown that the track of the truck wheels passed within from 6 to 12 inches of plaintiff...