Buckley v. Flint & P.M.R. Co.

• Decision Date: 23 March 1899
• Citation: 119 Mich. 583,78 N.W. 655
• Parties: BUCKLEY v. FLINT & P. M. R. CO.
• Court: Michigan Supreme Court

78 N.W. 655

119 Mich. 583

BUCKLEY v. FLINT & P. M. R. CO.

Supreme Court of Michigan

March 23, 1899

Error to circuit court, Saginaw county; Eugene Wilber, Judge.

Action by Mary Buckley against the Flint & Pere Marquette Railroad Company. There was a judgment for defendant, and plaintiff brings error. Affirmed.

John F O'Keefe (George W. Weadock, of counsel), for appellant.

Hanchett & Hanchett, for appellee.

MOORE J.

Plaintiff sued the defendant to recover damages for injuries received by her upon a street railroad crossing. The circuit judge directed a verdict in favor of the defendant upon the ground that the negligence of plaintiff was such that she was not entitled to recover. It is claimed by plaintiff: First, that the question of the negligence of the plaintiff was for the jury; second, that, even though the negligence of plaintiff contributed to her injury, she was entitled to recover, because of the gross negligence of defendant.

The record shows that at the time of the injury 10 tracks of the railroad company crossed Wadsworth street. This crossing is 136 feet east of Fourteenth street. Approaching the railroad crossing from Fourteenth street, the first track is the main track for outbound trains. The second track is the main track for inbound trains. The other tracks are used for freight purposes. There was a sidewalk on the north side of Wadsworth street, from Fourteenth street, going east, which extended to the first railroad track. The planking then extended south between the rails of the first track until it reached the planking of the roadway in the middle of the street. This roadway was planked with planking 32 feet wide. The planking commenced west of the first track, and extended east until all the tracks were passed. There was a gate across the highway, just south of the first track, but it did not extend across the sidewalk.

According to the case made by the plaintiff, she was a woman in good health, about 52 years old, who for about six weeks had lived three blocks east of the railroad tracks, and had passed over them several times prior to the day of the injury, which occurred upon the 31st day of March. About half past 5 or 6 o'clock, she left her house, and passed over these tracks, going to the house of Mrs. Winston. It was then daylight. The hearing of plaintiff was good, but she was somewhat nearsighted. Prior to living where she did at the time of the accident, plaintiff lived for a long time two doors away from the Seventh street crossing, where there were more tracks than at Wadsworth street crossing and had been in the habit of going upon the right of way, and picking up pieces of coal and fuel which had dropped from passing trains. She testified that upon the night in question, at about half past 7 o'clock, when it was quite dark, she came east from Fourteenth street, on the sidewalk until she reached the railroad. She noticed the gate was up, and followed the sidewalk until the planking turned to the south, when she followed it to the planking in the highway. She then went a little further east, when she found they were switching cars east of her on the freight tracks, and she waited for an opening in the train, so that she could go home. She says the bumping of the cars and the escaping of the steam of the locomotive made a good deal of noise, and obscured her vision; that she looked and listened for any train that might come in, and saw and heard none; that she supposed she was in a place of safety when she was struck and hurt. She says she does not know where she was standing when she was struck. One of her witnesses says she was standing upon the second track, and stood there for 10 or 15 minutes, and was struck by the incoming train. It also appeared that the planking between the rails and between the tracks was about even with the rails of the several tracks. There was a very considerable space between these various tracks. It is claimed by counsel that plaintiff was deceived by the evenness of the planks between the rails, and supposed she was standing in a place of safety, when she was in fact standing on the track; and they insist that it should have been left to the jury to say whether what was done by plaintiff was consistent with the requirements of ordinary care, and whether she was guilty of contributory negligence,-citing Regan v. Railroad Co. (Wis.) 54 N.W. 623; West v. Railroad Co., 32 N. J. Law, 91; Railway Co. v. Hansen (Ill. Sup.) 46 N.E. 1071; Greany v. Railway Co., 101 N.Y. 419, 5 N.E. 425; Railway Co. v. Wilson (Pa. Sup.) 18 A. 1087. These cases are either easily distinguished from the case at bar, or are not in harmony with a long line of decisions in this court. Counsel also cite Cooper v. Railroad Co., 66 Mich. 261, 33 N.W. 306; McDuffy v. Railroad Co., 98 Mich. 356, 57 N.W. 248; Louis v. Railroad Co., (Mich.) 69 N.W. 642; Tobias v. Railroad Co., 103 Mich. 330, 61 N.W. 514; Willet v. Railroad Co. (Mich.) 72 N.W. 260. These cases are none of them in point. Before entering upon the track, the persons injured had done what the law required, and when attempting to cross were at once injured. In the case at bar the plaintiff knew when she entered through the gate that guarded the railroad tracks. She knew she was in a place of danger, where trains were liable to pass and repass. She knew of the existence of the tracks in the vicinity of where she stood, and that the railroad crossing was a place of danger; and, without making certain that she was standing in a place of safety, she stood inside of the gate, and, according to the testimony of her witness, remained upon one of the main tracks of the crossing for 10 or 15 minutes, until she was struck and injured. According to all the testimony, she was so near this track as to be struck by the passing train. If...