Hudson v. Grand Trunk W. Ry. Co., 149.

• Citation: 198 N.W. 339,227 Mich. 1
• Decision Date: 10 April 1924
• Docket Number: No. 149.,149.
• Parties: HUDSON v. GRAND TRUNK WESTERN RY. CO.
• Court: Supreme Court of Michigan

227 Mich. 1

198 N.W. 339

HUDSON

v.GRAND TRUNK WESTERN RY. CO.

No. 149.

Supreme Court of Michigan.

April 10, 1924.

Error to Circuit Court, Kalamazoo County; George V. Weimer, Judge.

Action by John Hudson against the Grand Trunk Western Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, MOORE, STEERE, FELLOWS, and WIEST, JJ. H. R. Martin, of Detroit, for appellant.

Harry C. Howard, of Kalamazoo, for appellee.

BIRD, J.

While plaintiff and his family were crossing the intersection of West Prairie street and defendant's railway, in the village of Vicksburg, their Ford automobile was struck by defendant's east-bound passenger train. The collision resulted in the death of his baby, 13 months old, injuries to himself, wife, and 3 year old boy, and the destruction of his automobile. Plaintiff began this suit to recover for his personal injuries, and also the damage to his car. The jury awarded him $2,212.

Defendant's counsel considers his assignments of error under two heads, and contends: (a) That no actionable negligence was shown against the defendant; (b) that the testimony shows plaintiff was guilty of contributory negligence, as a matter of law.

(a) The principal items of negligence asserted by the plaintiff in his declaration and proofs were excessive speed, failure to keep the electric crossing bell in repair, and a failure to give the customary crossing signal.

The testimony shows the train was moving from 40 to 45 miles an hour. Whether that rate of speed was excessive is a relative one. It depends on the attendant circumstances. A rate of 40 or 45 miles an hour in the open country would not be negligence, as a matter of law, and conditions might be such that it would not be negligence to pass through a village at that rate of speed. It would depend, however, on how well the crossing or crossings were protected, how straight the track was, whether the view of one crossing the tracks would be obstructed by curves, cars, foliage, or buildings. Thayer v. Railway Co., 93 Mich. 150, 53 N. W. 216;Guggenheim v. Railway, 66 Mich. 150, 33 N. W. 161;Ommen v. Railway, 204 Mich. 392, 169 N. W. 914, and cases cited; Butler v. Rock Island Ry., 99 Me. 149, 58 Atl. 775,105 Am. St. Rep. 267;Chicago, etc., Ry. v. Crose, 214 Ill. 602, 73 N. E. 865,105 Am. St. Rep. 135;Hicks v. Railway, 164 Mass. 424, 41 N. E. 721,49 Am. St. Rep. 471;Haley v. Railway, 197 Mo. 15, 93 S. W. 1120,114 Am. St. Rep. 743.

Ruling Case Law states the rule as follows:

‘The general rule is that in the absence of a prohibitory statute or ordinance a railroad company may ordinarily run its trains at such speed as it sees fit, and that a charge of negligence cannot be predicated on the rate of speed at which a train is run, unless there are attendant circumstances which make such speed negligence. A rate of speed that would be entirely safe under some conditions may, however, be recklessly dangerous under other conditions, and it is generally held that it is for the jury to determine whether or not the speed at which a train was operated was negligent under all the circumstances.’ 22 R. C. L. 947.

Whether it was negligent operation for defendant to run its train from 40 to 45 miles an hour through a village of 1,600 inhabitants under the conditions which existed there on that day was a question of fact which was properly submitted to the jury.

It was also shown that the electric crossing bell was out of repair and did not ring as the train approached. There did not appear to be much conflict in the evidence on this question. The trial court, in submitting that question to the jury, said:

‘Plaintiff also claims that the defendant company was guilty of negligence in carelessly permitting the crossing bell to be out of order, out of repair. The company have adopted this sort of device as a warning to the public, and assume the duty and responsibility of caring for and maintaining that device so that it will give timely warning to the traveling public. The company, in adopting that, did not become absolute insurers that it would always be in perfect order or always serve as a perfect warning to the public. But, having adopted that device, it owes a duty to the public to use reasonable care to keep that device in working order, and, if it neglects or fails to have the device in working order, then it would be guilty of negligence in that respect.’

This charge is in accord with the doctrine laid down in the following cases: Tobias v. Railway, 103 Mich. 330, 61 N. W. 514;Coston v. Railway, 201 Mich. 232, 167 N. W. 940;Crawford...