Golob v. Detroit United Ry., 12.

• Decision Date: 24 July 1924
• Docket Number: No. 12.,12.
• Parties: GOLOB v. DETROIT UNITED RY.
• Court: Michigan Supreme Court

228 Mich. 201

199 N.W. 639

GOLOB

v.DETROIT UNITED RY.

No. 12.

Supreme Court of Michigan.

July 24, 1924.

Error to Circuit Court, Wayne County; Joseph A. Moynihan, Judge.

Action by Harry Golob against the Detroit United Railway. Judgment for defendant, and plaintiff brings error. Reversed, and new trial granted.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Dwyer & MacPherson, of Detroit, for appellant.

William E. Tarsney, of Detroit, for appellee.

STEERE, J.

Plaintiff was injured in a collision between the Ford sedan in which he was riding and one of defendant's interurban cars. He brought this suit to recover damages for the injuries which he then received, and upon the trial a verdict was directed by the court in favor of defendant on the ground of his contributory negligence. The question involved here is whether, viewing plaintiff's evidence in the most favorable light, the case should have been submitted to the jury.

The accident occurred on Woodward avenue in the city of Detroit at about 7:30 o'clock in the evening of March 26, 1922, between the 7 and 8 mile road near the Evergreen cemetery, which lies on the west side of Woodward avenue.

Plaintiff was out riding with a friend named Gurian, who owned the auto. He sat on the right side of the rear seat, and Gurian's little daughter on the right front seat, while Gurian sat in front on the left side driving. They rode north out Woodward avenue to the vicinity of the cemetery, and were turning around to go back towards the center of the city when the accident occurred. That portion of Woodward avenue was paved 18 feet wide. At the place Gurian selected to turn back there was a crossing leading into the cemetery over defendant's double line of tracks which were on the west side of the paved portion of the avenue, the rail farthest east being about 4 feet from it, the space between being filled up level with the top of the rails and pavement. Defendant's tracks were planked between the rails. The planking was laid lengthwise level with the rails. In going north out Woodward avenue Gurian drove on the right or east side along the pavement. Before starting to turn back he stopped, and both he and plaintiff looked to the rear to ascertain if any car was approaching from that direction, plaintiff taking his view through the rear window of the sedan. They saw a car coming some distance away, stated by plaintiff as about 2 or 2 1/2 blocks. Gurian judged the distance was 500 or 600 feet, and estimated that at the speed it was coming he had time to turn around and get back to the pavement in safety. He then started to turn and continued until he was near the track at which time, as he stated, the car was about 300 or 325 feet away, and as he swung over the edge of the track his right front wheel caught between the easterly rail and planking, stopping his auto and stalling his engine. The motorman whistled but did not slacken speed until his car was within 30 or 40 feet of the stalled automobile, and was then unable to do so before he struck it, but stopped some 30 or 40 feet beyond. When the auto stalled, plaintiff seized the little girl before him with his left hand, lifted the right front seat out of the way and opened the door with his right hand, but had difficulty in getting through the door, and was unable to escape before the collision.

The errors assigned are refusing to submit to the jury the questions of plaintiff's and defendant's negligence, and also defendant's gross or subsequent negligence, which was also declared upon. The questions before us are not whether as a matter of fact Gurian was free from contributory negligence and defendant negligent, but whether there was evidence to carry those questions to the jury.

Gurian selected for making his turn a crossing where he had a smooth and level space to circle on apparently free from any danger of trouble or delay. He was mindful that his car in turning might extend over the easterly rail of the track. He looked for a car and saw one coming such a distance away that he judged he could safely make the turn and get back on the pavement before it passed. His testimony is undisputed that he could and would have done so easily had not a space between the east rail nearest the pavement and planking adjoining it on the west caught his right front wheel and stalled his motor. At the worst this case falls within the class pointed out in Hickey v. D. U. R., 202 Mich. 496, 168 N. W. 517, with supporting citations, ‘where the plaintiff saw the approaching car and decided there was sufficient time to cross ahead of it, under circumstances which do not clearly show recklessness in the formation of such judgment’ (citing cases).

It cannot be said that Gurian's failure to anticipate his car might be caught and stalled as shown on the apparently level crossing where the planking between the rails was flush with their top was, as a conclusion of law, contributory negligence.

‘We have repeatedly stated that before such a conclusion can be arrived at all reasonable minds should reach the same conclusion, that...