Heintzelman v. Pa. R. Co.

• Decision Date: 06 December 1932
• Docket Number: No. 28.,28.
• Citation: 260 Mich. 688,245 N.W. 548
• Parties: HEINTZELMAN v. PENNSYLVANIA R. CO.
• Court: Michigan Supreme Court

260 Mich. 688

245 N.W. 548

HEINTZELMAN

v.PENNSYLVANIA R. CO.

No. 28.

Supreme Court of Michigan.

Dec. 6, 1932.

Appeal from Circuit Court, Kent County; William B. Brown, Judge.

Action by Robert Heintzelman against the Pennsylvania Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed.

Argued before the Entire Bench.Knappen, Uhl, Bryant & Snow, of Grand Rapids, for appellant.

Linsey, Shivel & Phelps and Arthur R. Sherk, all of Grand Rapids, for appellee.

BUTZEL, J.

On August 31, 1930, Robert Heintzelman, plaintiff, was returning from a dance at Alpine, Mcih., in company with a young lady. In order to reach his farm home, he drove his old model ‘T’ Ford car through Grand Rapids, with whose streets he was not very familiar. Shortly after midnight, he was driving in an easterly direction along the right or southerly side of Goodrich street, and had reached a point at which the street is traversed for a distance of 583 feet by a series of twenty-seven tracks belonging to various railroads, and within a few blocks from the depot located on another street. After driving about halfway across the tracks, he reached three of them belonging to the Pennsylvania Railroad, defendant herein. For convenience, we shall call the most easterly of these three tracks the ‘main’ track, and the two immediately to the west the ‘sidetracks.’ As he approached the crossing, he was able to see all of the tracks ahead of him with the aid of the headlights of his car. Just east of the main track, and also 200 to 300 feet to their west, two street lamps were lighted and suspended in the center of the street. From the westerly rail of the more westerly sidetrack, and the most westerly rail of the main track, there is a distance of approximately 29 feet.

Plaintiff testified that, as he approached the first of the sidetracks, he noticed that there were two rows of box cars standing north of the street on each of the sidetracks; and that the end of the cars nearest the street was about 5 feet north of the sidewalk; that he saw these cars clearly, and that they were standing still with no engine attached to any of them; that, as he came to the sidetracks, he stopped his car, looked through its open windows and listened, but neither saw any cars on the main track nor heard any signals; that he thereupon proceeded in low gear at the rate of about 8 miles an hour; that just as he reached the main track a large black object suddenly loomed up before him; that it was the end of the rear coach of a string of passenger cars that were being backed across Goodrich street from the north at a rate of speed about one-third in excess of that at which plaintiff was driving. The front of his automobile was struck and demolished, and he sustained serious injuries, for all of which he seeks recovery. Plaintiff's companion testified that she saw the cars on the main track, but assumed that they were stationary, just as the box cars on the sidetracks had been, She corroborated plaintiff's testimony that there were no lights nor warning signals given.

Defendant claimed that plaintiff was guilty of contributory negligence even on his own testimony and theory of the case, and moved for a directed verdict both at the conclusion of plaintiff's testimony and again at the close of all the proofs. The motions were both denied, plaintiff recovered...