Garrity v. Detroit Citizens' St. Ry. Co.
| Decision Date | 27 April 1897 |
| Citation | 70 N.W. 1018,112 Mich. 369 |
| Parties | GARRITY v. DETROIT CITIZENS' ST. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Wayne county; Willard M. Lillibridge Judge.
Action by John Garrity, administrator of the estate of Hugh Garrity deceased, against the Detroit Citizens' Street Railway Company, for the death of plaintiff's intestate, caused by defendant's negligence. There was a judgment entered on a verdict directed by the court in favor of defendant, and plaintiff brings error. Reversed.
T. A. E. & J. C. Weadock, for appellant.
Brennan Donnelly & Van De Mark and A. C. Angell, for appellee.
The plaintiff's intestate was killed while driving to a fire upon the truck of the Detroit fire department, in a collision with a street car at a crossing of streets. The circuit judge directed a verdict for the defendant, upon the ground of contributory negligence, it appearing that deceased, while driving three horses before a truck 69 feet long, came to the point where Montcalm street (upon which he was driving) intersected Woodward avenue, without having his horses under control, so that he could stop them in time to prevent a collision with an electric street car, should one be so near as to get in his way. The undisputed evidence shows that the car was heavily loaded, and was approaching upon a downgrade, at a distance, shown by different witnesses, to be from 30 to 150 feet or more from the place of the accident. The two car tracks upon Woodward avenue were near the center, and the track upon which this car ran was about 50 feet from the street line, and seems not to have been visible or noticed until the driver (who must have sat 14 or 15 feet back of the end of the truck pole) passed the street line. At this time the horses were going at the rate of 8 miles an hour, and were within 35 feet of the track; and, as it was conclusively shown that it would require 100 feet in which to stop the truck, it is plain that the driver, when he discovered the car, had no alternative but to cross the track in front of the car. When the horses were on the track (which was probably as soon as he could do so after seeing the car), he drew his whip, and urged the horses, increasing their speed. The car, which weighed seven tons exclusive of passengers, was caught by the rear wheel of the truck, and turned around so that it stood across the track. The wheel of the truck was broken, and the driver was killed.
Error is assigned upon the charge, counsel for the plaintiff claiming that the case should have been submitted to the jury. It is contended that the truck had the right of way under the city charter which authorizes it, and makes it a misdemeanor for any one to obstruct its passage, and that it was the duty of the motormen to stop their cars, and give the fire apparatus the opportunity of crossing without delay, and that it was unnecessary for the driver to have his team under control at street crossings, so as to be able to stop if necessary to avoid a collision with a car. It is manifest that a fire truck approaching a street upon which is a street railway is liable to find cars in any degree of proximity to its pathway, either with or without fault of the motorman, so close, indeed, that to stop may be impossible. A collision involves danger to life and limb, to those upon the car, as well as to those upon the truck; and, while the exigency of a fire may well require dispatch, it is not so essential as to justify taking unnecessary chances or collision dangerous to life. Furthermore, collisions do not conduce to dispatch, but cause delay, and the public service is advanced by avoiding them. So, we think that both the preservation of life and expedition in getting to the fire require caution in approaching streets where cars are likely to be encountered. As an abstract proposition, then, we think that the approach to a street-car line, which must be crossed, without having the horses under such control as to permit of stopping, is negligence; and the proof shows that the driver was culpably negligent in approaching this street. Had the car been a little nearer, or responded less quickly to the efforts to stop it, the pole of the truck would have crashed into it, and the consequences of such an accident are frightful to contemplate. Counsel cite several cases in support of this proposition, among them the following: Carson v. Railroad Co., 147 Pa. St. 219, 23 A. 369; McGee v. Railway Co., 102 Mich. 107, 60 N.W. 293; Fritz v. Railway Co. (Mich.) 62 N.W. 1007; Greenwood v. Railroad Co., 124 Pa. St. 572, 17 A. 188. This last-mentioned case applied the doctrine of contributory negligence to one who, going to a fire, drove a hose cart at a rapid rate across a railroad, although the gates were up. See, also, People v. Little, 86 Mich. 125, 48 N.W. 693. The language of Chief Justice Champlin is apropos to this case, upon the contention that having the right of way by ordinance justified the intestate in not having his team under control when approaching the street crossing. If we can say that his negligence actually contributed to the accident, it must follow that we should approve the course taken by the trial judge, and affirm the judgment. This involves the question whether or not the car was so close to the intersection of the streets as to render an attempt to cross in front of it imprudent; for, manifestly, if the car was so far off as to justify the ordinarily prudent man in driving such a vehicle as this truck across in front of the approaching car, such act would not be made negligent by reason of an act which, though negligent in the abstract, was not negligent in relation to the particular car which was approaching. In other words, if it was not negligent to cross the track in front of the car, the driver cannot be said to be guilty of contributory negligence, because (owing to his rapid approach) he had no alternative after discovering the car. But, on the other hand, we should perhaps emphasize the converse of this proposition, viz. that, if it is negligent to cross in front of a car as near as this one was, the driver cannot be relieved from the consequences of his attempt, by reason of the fact that he found himself...
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