Fortin v. Bay City Traction & Elec. Co.

• Citation: 154 Mich. 316,117 N.W. 741
• Court: Supreme Court of Michigan
• Decision Date: 29 September 1908
• Parties: FORTIN v. BAY CITY TRACTION & ELECTRIC CO.

154 Mich. 316
117 N.W. 741

FORTIN
v.
BAY CITY TRACTION & ELECTRIC CO.

Supreme Court of Michigan.

Sept. 29, 1908.

Error to Circuit Court, Bay County; Chester L. Collins, Judge.

Action by Ellen Fortin against the Bay City Traction & Electric Company. From a judgment for plaintiff, defendant brings error. Affirmed.

Argued before MONTGOMERY, OSTRANDER, HOOKER, MOORE, and McALVAY, JJ.

[117 N.W. 742]

Weadock & Duffy, for appellant.

Fred W. De Foe, for appellee.

MONTGOMERY, J.

This is an action to recover damages for personal injuries sustained by plaintiff through the negligence of the operatives of one of the defendant's cars on the Banks Line, so called, in Bay City, on the afternoon of August 12, 1905. At the crossing of the defendant's line with the tracks of the Michigan Central Railway Company is constructed a steel viaduct, which is a continuation of the street over the Michigan Central tracks. The southerly approach to the steelwork or span is somewhat steep. Then for a distance of 125 feet the span is level. From the end of the level portion the street slopes gradually for a distance of 650 feet, where a private driveway of the Potts Oil Company comes out to the street. The car upon which the plaintiff was riding when in use as a summer car has one side removed, and the running board or step board extends along the entire open side, permitting the passengers to get on or off between any of the seats. The rear platform is spacious, and the car may be boarded or left from it. The motorman is stationed in the front vestibule. Behind him on either side is a window, permitting a view of the track ahead from the seats in the car, and directly behind the motorman is a wooden door leading from the vestibule into the car. The plaintiff boarded the car with her daughter, Mrs. Eva Russell, between 5 and 6 o'clock, at the corner of Center and Washington streets, bound for her home in Banks. Between 3 and 4 o'clock there had been a light shower, lasting about half an hour, making the rails slippery and greasy. The car was equipped with doublepurchase hand brake in good working order and supplied with sand. It approached the southerly incline of the viaduct, where, owing to the steep grade and greasy condition of the rails, there was some difficulty in making the ascent. It proceeded up slowly onto the level portion, and started down the north incline. The rate of speed at which it was making this decline is in controversy. There was testimony tending to show that the car was going at an unusually high rate of speed for this point. When the car was halfway down or more, as defendant's testimony tends to show, the motorman discovered a van loaded with barrels with three...