Error
to circuit court, Bay county; Andrew C. Maxwell, Judge.
Action
by Gustaves Hine against the Bay Cities Consolidated Railway
Company. There was a judgment for defendant, and plaintiff
brings error. Affirmed.
MOORE
J.
The
following statement of facts is taken from the brief of
counsel for plaintiff: "Plaintiff resides in Bay City
at the southwest corner of Washington and Eighth streets.
Washington street runs north and south, and Eighth street
crosses it. Center street is north of, and parallel to
Eighth street, and Seventh and Sixth intervene. Twelfth
street is south of, and parallel to, Eighth, and Ninth
Tenth, and Eleventh streets intervene. On July 18, 1893, the
defendant corporation had two parallel street-railway tracks
on Washington street, about 4 feet apart,-one each side of
the center line of the street,-on which, for a few months, it
had been running electric street cars. Before electric cars
were put on, horse cars had been running on the same street
for several years. Plaintiff is the father of a girl, Dora
Hine, who in July, 1893, was about 9 years old. She had
always resided at the same place. On July 18, 1893, she had
been out with another little girl, riding a bicycle; and
returning, about noon, she came down Eighth street from the
east, and, on arriving at the corner of Washington street,
stopped for a few minutes, talking with the other girl.
Before mounting her wheel again, she looked up and down
Washington street, and saw a car standing still at the corner
of Center street, three blocks away. She did not look for it
again, but seems to have had her attention attracted to a car
coming down from the opposite direction, on the easternmost
track. She waited a little for this car to pass, and then
mounted her wheel to go home across the tracks. She did not
see any other car at that time, nor hear the bells of any
other. She seems to have had her attention
fixed on this (north-bound) car, and to have been very
careful to keep out of its way, and, as soon as it had
passed, started to cross the track, close behind it, on her
wheel; and when she had crossed that track and the space
between the two tracks, and had just reached the other track,
she was struck by a car coming on the other track, from the
north, and seriously injured,-so seriously that her recovery
was doubtful for a time,-and after recovery there was a
permanent
disfigurement of the face. She does not know whether the car
first struck her or her bicycle. Until she was struck, she
had no knowledge of the presence of the car that struck her.
For her medical, surgical, and other care and attendance, and
medical and surgical appliances, made necessary by this
injury, the plaintiff expended $241.40, and for the recovery
of that amount he brought this suit." In addition to
what is contained in this statement, it should be said that
Dora Hine could ride a wheel well; and she testified that,
before she got on her wheel she saw the car standing at
Center street; that she crossed behind the car coming from
the south, and did not see the car which was at Center street
when she started upon her wheel; that she did not look to see
if it was coming; that she had forgotten all about it; that
if she had thought of it, and looked that way, she would have
seen it. The judge charged the jury as follows:
"Gentlemen
of the Jury: If this suit was brought for the injury of a
mature, adult person, I should take it away from you, and
would not submit it for your consideration at all, because
the supreme court has made certain decisions, one of which
is that a man, before he enters upon the track to cross it,
must look both ways to see that there is no danger; and a
great many others substantially to the same effect. This
girl, on her examination here, testifies that she looked to
the north as she approached the track, before she started
or got upon her wheel, and saw the car standing at the
junction of Center and Washington streets. Now, the
plaintiff cannot recover in this case, except upon one
theory, and that I shall submit to you. If you find that
this girl, who was then nine years of age- You saw her in
the court room, you heard her answer the questions put to
her, and you can judge as well as I can as to the condition
of her mind then from what she says now. If
this girl, who was then an infant about nine years of age,
as is testified by herself and admitted by counsel, was not
of that mature mental development to know and appreciate
the various dangers by this class of rapid transit that
there is in this city, you may consider the matter further.
If you think that she was bright enough, and well enough
informed upon that subject, so that she knew substantially
what everybody or older people know about it, you will find
a verdict for the defendant. If she was not so maturely
developed that she knew what mature people do understand in
regard to such dangers, then you may consider the matter
...
