Day v. Pere Marquette Ry. Co.

• Decision Date: 02 December 1930
• Docket Number: No. 100.,100.
• Citation: 233 N.W. 425,252 Mich. 589
• Parties: DAY v. PERE MARQUETTE RY. CO.
• Court: Michigan Supreme Court

252 Mich. 589

233 N.W. 425

DAY

v.PERE MARQUETTE RY. CO.

No. 100.

Supreme Court of Michigan.

Dec. 2, 1930.

Error to Circuit Court, Gratiot County; Kelly S. Searl, Judge.

Action by Flora E. Day, administratrix of the estate of John N. Day, deceased, against the Pere Marquette Railway Company. Judgment for defendant, and plaintiff brings error.

Reversed and remanded for a new trial.

Argued before the Entire Bench.

Barstow & Barstow, of Detroit, and D. G. F. Warner, of Lansing, for appellant.

Mathews & Greene, of Ithaca (W. K. Williams and John C. Shields, both of Detroit, of counsel), for appellee.

NORTH, J.

This is a crossing accident case, and the question for review is presented by an order of the trial judge wherein he directed a verdict for the defendant at the close of proofs on the ground that plaintiff's decedent was guilty of contributory negligence.

The accident involved occurred at the point where defendant's track crosses West Superior street in the city of Alma, Mich. This is a paved street extending in an easterly and westerly direction, and defendant's track at this point extends in a northwesterly and southeasterly direction. Immediately adjacent to defendant's track, and on the easterly side thereof, is the track of the Ann Arbor Railroad Company. The distance between the tracks of these two companies from center to center is fourteen feet. The deceased, Dr. Day, was a practicing physician. In the forenoon on the day of the accident he was traveling easterly in his automobile on Superior street. As he approached within 5 or 10 feet of defendant's track, he stopped his car and waited until a north-bound freight train on the Ann Arbor track had passed. There was a flagman at the crossing. As soon as the freight train had cleared, two automobiles which had been waiting on the easterly side and pedestrians on the sidewalk proceeded to cross the tracks. Just at this time a regularly scheduled passenger train on defendant's road was approaching from the north. After flagging the freight and while it was passing, the flagman went over and stood on or near the northerly street curb. Here he was within a few feet of the defendant's track, was talking to pedestrians standing on the sidewalk, and was not displaying the stop sign which he held in his hand. He saw the approaching passenger train, warned at least one of the pedestrians, but told her she had time to cross. Vehicles approaching from the east were attempting to cross; their view towards the approaching passenger train at that time being obstructed by the freight train that had just passed. The flagman stopped the west-bound automobile traffic and caused one vehicle to back off the Ann Arbor track. In the meantime Dr. Day started to cross defendant's track. The flagman called to him and made motions to stop, but the doctor proceeded until the front wheels of his automobile were on defendant's track. Here his machine paused a moment, then started suddenly ahead, and just at this instant the collision occurred. Dr. Day was seriously injured and died three days later. Plaintiff, as the executrix of his estate, brought this action to recover damages.

As to defendant's negligence, the record admittedly presents an issue of fact. As bearing upon decedent's contributory negligence, there is evidence that before proceeding Dr. Day did not look to the north from which direction defendant's passenger train was approaching. If, as there is testimony to show, Dr. Day was between 5 and 10 feet west of defendant's west rail while waiting for the freight to pass, he could have been defendant's approaching passenger train at least 193 feet. From photographic exhibits, it conclusively appears that, from a position a little further west and more remote from defendant's track, Dr. Day's view of the oncoming train would have been very materially obstructed by...