Fish v. Grand Trunk Western Ry.

• Decision Date: 06 April 1936
• Docket Number: No. 19.,19.
• Parties: FISH v. GRAND TRUNK WESTERN RY.
• Court: Michigan Supreme Court

275 Mich. 273

266 N.W. 349

FISH

v.GRAND TRUNK WESTERN RY.

No. 19.

Supreme Court of Michigan.

April 6, 1936.

Action by Millard Fish against the Grand Trunk Western Railway. Judgment for defendant, and plaintiff appeals, defendant filing a cross-appeal.

Reversed and a new trial granted.Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.

Argued before the Entire Bench.

Frank Schwartz, of Detroit, for appellant.

H. V. Spike and Wm. W. Macpherson, both of Detroit, for appellee.

SHARPE, Justice.

This action was brought to recover damages for personal injuries claimed to have resulted from negligence of defendant's employees in operating a train. On October 23, 1930, at about the hour of 3 p. m., plaintiff was walking east on Michigan avenue in the city of Battle Creek and in so doing approached three lines of tracks which run in a northeasterly and southwesterly direction.

Plaintiff claims that he walked to within 5 or 6 feet from the west rail of the eastbound track, looked to his left or the north and saw no train approaching, he then looked to the south and saw a train approaching from the southwest about a short block away. He waited for this train to pass and when it was 40 or 50 feet from him he then looked to the north; and as the front of the engine passed him, he again looked to the south and just at this time he was struck by some object projecting from the tender of the train, which resulted in the loss of his right leg below the knee as well as causing a fracture of two ribs.

The cause came on for trial and at the close of plaintiff's proof the defense made a motion for a directed verdict upon the theory that plaintiff, by standing within 5 or 6 feet from the track and within 2 1/2 or 3 1/2 feet from the engine or tender which projected over the track a distance of 2 1/2 feet, was guilty of contributory negligence. This motion was granted by the trial court. Plaintiff seeks reversal.

When the trial court directs a verdict in favor of the defendant at the close of plaintiff's case, it must be assumed that the facts as brought out by the plaintiff are established.

‘It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.’ Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 683, 36 L.Ed. 485.

In Johnson v. Union Carbide Co., 169 Mich. 651, 135 N.W. 1069, 1070, the court said: ‘In considering the case of plaintiff as presented by the record, the well-known rule that it will be considered most favorably to him will be applied, and in the statement of facts defendant's case will not be considered.’

So also it may be said that testimony and inferences most favorable to the plaintiff must be accepted. Ballance v. Dunnington, 241 Mich. 383, 217 N.W. 329, 57 A.L.R. 262.

In this cause the defense has devoted a major portion of their brief to the theory that the evidence produced by plaintiff is purely conjectural and speculative and have cited many cases in support of their contention. We have examined these cases and find that, in a large measure, they relate to situations where the injured party had died without leaving any direct evidence as to the manner or cause of death, while in the instant case the cause of the injury is positive. The testimony is undisputed that there was a bar projecting from the side of the train and that the moving of the train caused this bar to strike plaintiff.

The trial court directed a verdict against the plaintiff upon the theory that plaintiff should have seen the object projecting from the car and was guilty of contributory negligence as a...