Evans v. Lake Shore & M.S.R. Co.
| Decision Date | 20 November 1891 |
| Citation | 88 Mich. 442,50 N.W. 386 |
| Parties | EVANS v. LAKE SHORE & M. S. R. CO. et al. |
| Court | Michigan Supreme Court |
Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.
Action by Thomas Evans against the Lake Shore & Michigan Southern Railway Company et al., to recover damages for personal injuries. From a judgment for defendants, plaintiff appeals. Reversed.
Corliss, Andrus & Leete, for appellant.
A C. Angell, L. C. Stanley, and George Jerome, for appellees.
This is an action on the case for negligence. Defendants' road crosses Croghan street about 300 feet east of Orleans street in the city of Detroit, at grade. The southerly side of the street, west of the track, is occupied by frame dwelling-houses, two stories high, built close together, and flush with the northerly line of Croghan street; and the most easterly house is about 40 feet from the westerly track. Cars going north on defendants' track climb a heavy grade. A gate-keeper and drop-gate are maintained by defendants at the crossing. A street railway is operated on Croghan street. Plaintiff claimed that, while driving easterly upon one of the street-cars, he stopped his car at Orleans street, to allow a passenger to alight; that in approaching the crossing the street-car conductor usually jumped off, and ran forward to the crossing, and signaled him whether to come on or stop that in this instance the conductor went forward as usual, and plaintiff turned on the brake to check his car, so as to give the conductor time to report; that as he did so, one Hurley, who was at the gate, and whom plaintiff supposed to be the gate-man, beckoned him to come on, and he turned off the brake, and started forward; that it was quite usual for the gate-keeper to signal him as he approached the crossing; that he could not see any distance south of Croghan on defendants' tracks until his horses had passed the last dwelling on the south side of the street; that the grade of the street at the tracks is considerably lower than it is 40 feet west of the crossing; that, as he approached the crossing, Hurley called out to him to hurry up, and he started up his horses; that he had no knowledge or warning of the approach of cars until the heads of his horses were within a few feet of the tracks, that when he discovered the train, he was too late to stop his car, and the only course open was to get across before the engine, that as he attempted this, a locomotive with tender attached, going north, tender first, struck the rear part of his car, killing one passenger, injuring others, and seriously injuring plaintiff; that the engine was running at a rate of speed prohibited by the city ordinances; that the gate was open at the crossing, and no whistle or bell was sounded. Defendants claimed that the whistle was blown, and that the locomotive had a steam-bell attached; that Hurley was not the gate-man or their agent; that the gate-man and Hurley were together in the gate-keeper's shanty when the engineer of the approaching locomotive whistled for a switch, which was north of and near the crossing; that the gate-man and Hurley then came out of the shanty, the former going to open the switch, and the latter going to the locality of the drop-gate. The gate-man says that he told Hurley to attend the gate or look out for the street-cars; but Hurley says that he received no instructions from the gate-man, denies that he signaled the plaintiff to come on, and claims that he would have dropped the gate, but did not do so, because the horses were in the way when he thought of it. The gate stood 38 feet west of the tracks.
The court submitted the case to the jury, but after the jury had retired, and it became evident that they could not agree, the jury were recalled, and directed by the court, upon its own motion, to bring in a verdict for defendants. The court erred in directing a verdict. The case comes clearly within the principles laid down in Richmond v. Railway Co. (Mich.) 49 N.W. 621. In that case there was no gate, but there was a flagman, whose duty it was to notify the public of approaching trains. He was in the shanty, and ran out too late to avert the collision. It was shown that he could be seen sitting in the shanty from the street-car. In the present case there was a gate, which was open, and thereat a person, who not only did not close it, but who, it is claimed, signaled the plaintiff to come on; in other words, assured him that it was safe to cross the railroad tracks. The testimony tended to show that the gate-man had up to this time been present at his post, and that usually, when trains were approaching, the gate was closed, or dropped across the street-car tracks. The gate-keeper was clearly negligent in leaving his post, knowing that the engine was approaching the crossing, without closing the gate, or giving some signal of danger. It has been frequently held that when gates are provided the public have a right, the gates being open, to presume, in the absence of knowledge to the contrary, that the gate-men were properly discharging their duties, and that it was not negligent on their part to act on the presumption that they were not exposed to a danger which could only arise from a disregard of their duties by the gate-men. Glushing v. Sharp, 96 N.Y. 676; Railroad Co. v. Schneider, (Ohio Sup.,) 17 N.E. 321. It is urged that gate-men cannot be present at all times, but the gate is always present, and, when open, it tends to assure the public of the absence of danger. Railroad companies can protect themselves and the public by closing the gate in the temporary absence of the gate-man. In the present case it is urged that Hurley was not a servant of the defendants, and hence defendants are not responsible for his act in assuring plaintiff that it was safe to cross. Conceding that Hurley was not the servant of the company, and was a mere by-stander, his conduct bears upon the question of the contributory negligence of the defendants. It is one of the circumstances properly to be considered by the jury in determining that question. If, as he claims, he did not signal plaintiff to come on, but did signal him to stop, the jury would be entitled to consider that fact in determining the question of plaintiff's negligence, and its weight would not be materially affected by the fact that he was not the servant of the company. Hurley occupied the place usually occupied by the gate-man. His presence there, the plaintiff's belief that he was the gate-man, his conduct there, and the open gate, are all circumstances to be considered by the jury in determining the question of plaintiff's negligence. An open gate would not excuse plaintiff's advance upon the crossing in the face of a signal of danger, or the protests of a by-stander; and an assurance of safety, although given by a stranger, is entitled to consideration and weight in explanation of the conduct of one to whom the assurance is given. It is insisted that the testimony tends to show that the rules of the street-car company provided that, before attempting to cross the tracks, the driver should stop the car, and wait until the conductor should go ahead and see that it was safe to cross; that the driver did not observe this rule, and was therefore guilty of negligence, and cannot recover. A careful examination of this testimony, and a fair construction of it, will not disclose the existence of such a rule, or testimony tending to establish its existence. The company's orders undoubtedly were, if the gates were up, and no gate-man was present, that the driver should stop, and the conductor should first...
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