Geist v. Detroit City Ry.

• Decision Date: 06 May 1892
• Citation: 51 N.W. 1112,91 Mich. 446
• Court: Michigan Supreme Court
• Parties: GEIST et al. v. DETROIT CITY RY.

51 N.W. 1112

91 Mich. 446

GEIST et al. v. DETROIT CITY RY.

Supreme Court of Michigan

May 6, 1892

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

Action by Valentine Geist and others against the Detroit City Railway. From a judgment for plaintiffs, defendant brings error. Reversed.

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

Sidney T. Miller, (Brennan & Donnelly, of counsel,) for appellees.

MORSE C.J.

This is an action for negligent injury to a hearse, and the damages resulting therefrom to plaintiffs, who are undertakers in the city of Detroit, caused by the collision of the same with a street car of defendant. Plaintiffs had verdict and judgment for $384.57. The collision occurred on the crossing of Baker street and Fourteenth avenue, in the city of Detroit, on May 28, 1890. The funeral procession in which the hearse was being driven was passing slowly down Fourteenth avenue. The two leading carriages of the procession crossed Baker street in safety. The hearse was the third in the procession. The intersection of Baker street and Fourteenth avenue is at the foot of a steep railroad bridge. This bridge is about 200 feet in length on the incline, and over 20 feet in height at its highest point. The testimony was very conflicting as to the cause and details of the accident. The negligence averred upon the part of the car driver is the failure to use the brakes, and running at a speed of from 12 to 15 miles an hour down this incline, without any particular effort to slow up until just as he neared the hearse, when he partially turned on the brake, and turned his horses to one side, off the track. It is also averred that suitable brakes and appliances were not provided with which to stop the car. The car struck the hind wheel of the hearse, tipping it over and badly injuring it.

The court below was asked to direct a verdict for the defendant on the ground of the contributory negligence of the driver of plaintiffs' hearse. His testimony as to where the car was when he first saw it differed upon this trial from his evidence given upon a previous trial. On the first trial he testified that he did not see the car until it was within 25 or 30 feet away, and it was going from 12 to 15 miles an hour, and his horses were just approaching the track when he saw it; that he thought he could get across, and whipped up his horses to do so. On the last trial he testifies that the next day after the first trial he went and measured the distance, and found that the car was 180 feet from the crossing when he first saw it, and that when he was crossing the track it was about 100 feet from him, coming at a "terrible" rate of speed. It is argued that, if his testimony first given was true, it was negligence for him to attempt to cross the track. This is undoubtedly so. It is also contended that his testimony, as given upon the last trial, cannot be true, because, with his team upon a walk, he could have crossed safely with the car 100 feet away. But there was other...