Gebhard v. Detroit, G.H. & M.R. Co.

• Decision Date: 20 February 1890
• Citation: 44 N.W. 1045,79 Mich. 586
• Parties: GEBHARD v. DETROIT, G. H. & M. R. CO.
• Court: Michigan Supreme Court

44 N.W. 1045

79 Mich. 586

GEBHARD v. DETROIT, G. H. & M. R. CO.

Supreme Court of Michigan

February 20, 1890

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

Wm. Look and H. F. Chipman, for appellant.

Otto Kirchner, for appellee.

GRANT J.

Plaintiff was passing from his place of business to his home, and while walking over the railroad crossing of the defendant upon Atwater street, in the city of Detroit, was struck by an engine, and injured. Upon the trial in the circuit court after the plaintiff rested his case, the judge instructed the jury to find a verdict for the defendant upon the ground that the plaintiff was guilty of contributory negligence. The correctness of this ruling is the sole question in the case. If but one conclusion can be drawn from the evidence, then the ruling was correct. If different conclusions can fairly be drawn from it, then the question should have been submitted to the jury for determination. The plaintiff was familiar with the crossing. His place of business was in close proximity to it. He had crossed it almost daily for many years, and knew to what extent the tracks were used, and the dangers attendant thereon. There were nine tracks at this crossing, with a distance of three to four feet between them. Plaintiff testifies that he knew it was a very dangerous crossing, and that trains were passing there in both directions, all day long, on all the tracks. Standing at the eastern side of the crossing plaintiff could see along the track 200 to 300 feet, in the direction from which the two engines were approaching. This is apparent from the diagram attached to plaintiff's brief. Plaintiff was going west towards his house. It was broad daylight. He evidently did not stop at the crossing nor look to see whether trains were approaching, but walked directly upon the tracks. When about half way across, he saw an engine coming, backing in towards the yard. He stepped back, and another engine coming in the same direction, on another track, struck him. He had crossed seven of the tracks, and reached the eighth, before he stopped and stepped back. He testifies as follows: "I looked up and saw that locomotive, [meaning the first one.] I then stepped back. I was looking towards the engine there. When I saw the engine coming, and stepped back to get out of the way, my face was still on that engine. I was looking at that engine. I did not turn clear around, but...