Doherty v. Detroit Citizens' St. R. Co.

• Decision Date: 27 September 1898
• Citation: 118 Mich. 209,76 N.W. 377
• Parties: DOHERTY v. DETROIT CITIZENS' ST. RY. CO.
• Court: Michigan Supreme Court

76 N.W. 377

118 Mich. 209

DOHERTY v. DETROIT CITIZENS' ST. RY. CO.

Supreme Court of Michigan

September 27, 1898

Error to circuit court, Wayne county; Willard M. Lillibridge Judge.

Action by John Doherty against the Detroit Citizens' Street-Railway Company. There was a judgment on a verdict directed for defendant, and plaintiff brings error. Affirmed.

Moore and Montgomery, JJ., dissenting.

Charles R. Whitman, for appellant.

Brennan Donnelly & Van De Mark, for appellee.

HOOKER J.

The question in this case is whether the plaintiff was guilty of contributory negligence. The proof conclusively shows that he walked upon a track of a street railway, and was almost instantly struck by the car. The most favorable view of the evidence is that he started to cross the street, and, at a distance of 12 feet or thereabouts from the track, looked to see if a car was coming, and saw none, but did see a covered grocery wagon and horse between him and the approaching car. He did not look again, but walked directly to and upon the track. The grocery wagon was not upon the track, and when the car passed it the wagon must have been sufficiently far from the track to permit the car to pass. Hence, when the plaintiff was within two or three feet of the track, he must have had an unobstructed view of the track, and the approaching car must then have been visible to him had he looked towards it. In the case of McGee v. Railway Co., 102 Mich. 107, 60 N.W. 293, it was held that it was not sufficient for a man to look when 15 feet from the track, but that it was his duty to look again before stepping upon the track. This was the rule laid down as to steam roads in the case of Houghton v. Railway Co., 99 Mich. 308, 58 N.W. 314. If, as contended, the plaintiff's view was obstructed by the wagon, that was a reason for greater caution. We are unable to distinguish this case from the McGee Case, and are of the opinion that it should be, and it is therefore, affirmed.

GRANT, C.J., and LONG, J., concurred with HOOKER, J.

MOORE J. (dissenting).

Plaintiff sued defendant to recover for injuries sustained by him while attempting to cross the tracks of the defendant company on Michigan avenue, at the intersection of Wabash avenue. The circuit judge directed a verdict in favor of defendant. Plaintiff appeals.

In directing a verdict, the circuit judge used this language: "The plaintiff started from the north curb of Michigan avenue across. Before leaving the curb, he says that he listened and looked both ways for an approaching car, but saw none or heard none, and that he did not look again. He passed, drawing his wheelbarrow after him, in front of the approaching team, and, without looking again, attempted to cross the north track, when he was struck by the defendant's car, coming from the east, and was injured." It was the opinion of the circuit judge that the plaintiff was guilty of contributory negligence, and that the case was governed by McGee v. Railroad Co., 102 Mich. 113, 60 N.W. 293. Counsel for defendant also cite in favor of this ruling, Houghton v. Railway Co., 99 Mich. 308, 58 N.W. 314; Hine v. Railway Co. (Mich.) 73 N.W. 116; Henderson v. Railway Co. (Mich.) 74 N.W. 525.

We think the circuit judge overlooked some of the plaintiff's testimony. It was his claim that he came from the north, on the west side of Wabash avenue, to Michigan avenue; that, looking east from Michigan avenue, his view was obstructed by a team, which was coming from the east, which team was on the north side of the street-railway tracks, and also by a grocer's wagon, still further east, which was backed up to the curb, the horse's head reaching towards the railway tracks. The record shows that from the curb to the rail was 16 feet. The plaintiff testified he intended to cross Michigan avenue at the crossing designed for foot passengers. "When I arrived at that crossing, I looked west to see if there was any car. A car had just gone by from the west, down to the city, and I stood and looked east and west, and could not see a car coming from the east. I saw a car going east, on the south track, which went east before I passed. In the west I could not see a car. Looking to the east, I saw a team of horses and a covered grocery wagon. *** Besides the team and sleigh, I saw a grocery wagon standing between the butcher shop belonging to Slitts, on...