Chauvin v. Detroit United Ry.

• Decision Date: 17 November 1903
• Citation: 135 Mich. 85,97 N.W. 160
• Court: Michigan Supreme Court
• Parties: CHAUVIN v. DETROIT UNITED RY.

97 N.W. 160

135 Mich. 85

CHAUVIN v. DETROIT UNITED RY.

Supreme Court of Michigan

November 17, 1903

Error to Circuit Court, Wayne County; George S. Hosmer, Judge.

Action by Silas Chauvin against the Detroit United Railway. Judgment for plaintiff, and defendant brings error. Affirmed.

Brennan Donnelly & Van De Mark, for appellant.

Seth E Engle, for appellee.

HOOKER C.J.

The plaintiff's team was struck by defendant's street car, and one of his horses was killed, and he was injured. The collision occurred about 7 o'clock in the evening of October 28th, after dark. The only question raised by this record is whether the court should have directed a verdict upon the ground of contributory negligence.

The plaintiff testified that he was driving upon Jefferson avenue, and had occasion to cross the double track of the railroad; that, before turning to cross, he looked both ways for the cars, and saw them both; that the one going from the city was approaching on the track next him, and was about one block distant; the one going toward the city was approaching him, and was about two blocks distant; that he turned to cross diagonally, but was struck by the latter. It is fairly inferable from his testimony that as he drove upon the tracks he looked again, first for the east-bound car, which was the nearer, and then for the west-bound car, when he saw that it was about to strike him and the collision happened at once. There was evidence that the car was running very fast, and testimony tending to show that no effort was made to stop it. In deciding this question, the testimony most favorable to the plaintiff must be assumed to be true.

Defendant's counsel claim that it is conclusively shown that the plaintiff was negligent, because he drove upon the second track before looking a second time, and that, under the decisions of this court, one who does not look immediately before going upon a railroad track is negligent; citing Doherty v. Ry., 118 Mich. 209, 76 N.W. 377, 80 N.W 36; Merritt v. Foote, 128 Mich. 367, 87 N.W. 262; McCarthy v. Ry., 120 Mich. 400, 79 N.W. 631; McGee v. Ry., 102 Mich. 107, 60 N.W. 293, 26 L. R A. 300, 47 Am. St. Rep. 507;, Borschall v. Ry., 115 Mich. 473, 73 N.W. 551; Hine v. Ry., 115 Mich. 204, 73 N.W. 116. It is true that in some cases the negligence of a plaintiff has been clearly and conclusively shown. We think this is not such a case. The use of cars upon highways does not deprive persons of the right of walking and driving. They are constructed and operated upon the assumption that they will be driven upon and over, and that mutual care will be taken to avoid collisions. Necessarily the driving public must exercise some judgment in relation to the opportunity to cross tracks, especially in places where cars are always in sight; and, as we have intimated in another case, if one were to be always chargeable with negligence for driving upon a track when an approaching car was in sight, there are places where he could never cross the track without being negligent. When, in the exercise of common prudence, he may reasonably think there is time to...