Labarge v. Pere Marquette R. Co.

• Decision Date: 14 July 1903
• Citation: 134 Mich. 139,95 N.W. 1073
• Court: Michigan Supreme Court
• Parties: LABARGE v. PERE MARQUETTE R. CO.

95 N.W. 1073

134 Mich. 139

LABARGE v. PERE MARQUETTE R. CO.

Supreme Court of Michigan

July 14, 1903

Error to Circuit Court, Bay County; Theodore F. Shepard, Judge.

Action by Sophia Labarge against the Pere Marquette Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

D. B Richardson (Loranger & Flynn, of counsel), for appellant.

T. A E. & J. C. Weadock (F. W. Stevens, of counsel), for appellee.

HOOKER, C.J.

The plaintiff, when driving, was struck and injured by a car belonging to the defendant, which had been shunted down the street upon which she was driving, in Bay City. This action was brought to recover damages for the injury sustained by her, and, upon the trial, a jury rendered a verdict for the defendant. She has taken a writ of error upon the judgment rendered.

The negligence complained of is, first, that the defendant's servants 'kicked' two sleeping coaches down its track, and across a street (Third), at a rate of five to six miles an hour, with no one upon them to control them, and this is said to have amounted to 'gross negligence.' This was afterwards amended so as to allege that she was struck upon Jefferson street, which accorded with the fact. The railroad occupies a portion of Jefferson street--which crosses Third--the main track being near the center, and a side track just west of it. Other side tracks occupy lands adjacent to Jefferson street. The plaintiff's home was upon Jefferson street, a short distance from Third street and she was familiar with defendant's practice of shunting its cars, which it did daily at this place. Her version of the affair is, in brief, that, while driving with a companion, she saw the cars pulled north across Third street, and that her companion stopped her horse until the train had crossed, when, on being signaled to cross the track by the flagman, she did so, and immediately turned up Jefferson street towards plaintiff's residence. As she turned north on Jefferson the cars were coming toward her from the north, and when she had gone 15 or 20 feet, on Jefferson street, the horse became frightened at the approach of the cars, and reared and pranced, and finally became unmanageable, and backed the buggy upon the track in front of the approaching car, which struck it, to her injury. We are asked to say that the act of shunting these cars along the street, with no one at the brake, was such a want of care as to make defendant liable, regardless of the question of contributory negligence.

It may be conceded that, where one willfully injures another, the doctrine of contributory negligence is not involved, because the injury is not negligent, but intentional. Again, where one is seen in danger, though placed there through his own negligence, one who, thus seeing him, omits ordinary care to avert an injury to him, is not along negligent, but is wanton, and, as wantonness of this kind is akin to willfulness, there is an opportunity for applying the same rule, and defendants have been held liable under such circumstances. And again, we can conceive of a degree of recklessness which, by reason of its coincidence with probable disaster, is closely allied to the foregoing, and should perhaps be governed by the same rule, but it does not follow that all acts that counsel or jurors might, in the light of subsequent events, be inclined to call reckless should be treated as something more than negligence, and classed with intentional, rather than with negligent, acts, when it cannot be said that it was not coincident with a probable disaster. It has been held in this state to be 'gross negligence' to run a car across a highway at a high rate of speed, without having a lookout to stop the train, or warn persons upon the crossing by signal or otherwise to get off from the track, and that in such cases, where the danger ought to have been discovered and averted by the use of ordinary care, the antecedent negligence which caused plaintiff's jeopardy, which should have been discovered and avoided, should not constitute a defense, though it does not follow that subsequent negligence of a plaintiff would be excused, and it should not be.

Thus, in Battishill v. Humphreys, 64 Mich. 494, 31 N.W. 894, a child 2 1/2 years old was run over in daylight upon a street crossing, unseen by the engineer, who, it was said, could have seen her in time to stop his train had he been attentive, and it was held that the court would not discuss the question of the negligence of the guardian, who should have prevented her going into a place of danger. Here was the antecedent negligence of the guardian, and the subsequent failure to discover the dangerous situation, for want of ordinary care, upon which the liability rested.

The next case was Cooper v. L. S. Ry. 66 Mich. 261, 33 N.W. 306, 11 Am. St. Rep. 482. A girl of 11 years stepped upon a track at a city street crossing and looked after a receding train, when she was struck by a caboose of another train and killed. Again it was held that the defendant was liable, because it backed the train over a highway crossing, without a brakeman at the rear end as a lookout, and in readiness to apply the brakes in case of danger, and thus prevent collision or accident, there being no flagman. The question of contributory negligence was left to the jury, and the defendant claimed it was injured thereby. This court held not.

In the case of Schindler v. Ry., 87 Mcih. 405, 49 N.W. 670, some freight cars were shunted across a highway, no one being upon them. A boy of 11 years was riding in a sleigh, which was struck, and he was injured. The case shown that the defendant's crew knew that the sleigh had started for the crossing 'at the very time when they kicked these cars across this highway.' The defendant was held liable. It was contended that the boy was chargeable with contributory negligence. In discussing this, the court said: 'The charge in the declaration is for gross negligence. The jury have found the defendant guilty of gross negligence. There is no room, therefore, for the claim that the defendant company should be excused for its negligence, though Schupp may have been negligent, and his negligence might have been imputed to the child. Whether, under the circumstances stated here, Schupp's negligence could be imputed to the child, we do not determine, as under the finding of the jury there is no room for contending that Schupp's or the plaintiff's contributory negligence could be made applicable in determining the rights of the parties in this case. The term 'gross negligence' has been used in cases decided by this court, and has a definite meaning, when referred to as authorizing a recovery for a negligent injury, notwithstanding the contributory negligence of the plaintiff. It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them.'

In each of these cases there was a possible antecedent negligence, which should have been discovered, and danger averted, by the exercise of ordinary care by the defendant, viz., by having a lookout upon its cars. There was nothing to indicate that the plaintiff was chargeable with subsequent negligence, or, if there was, the point was not raised. In one of the cases the question of contributory negligence was not before this court in a way to be passed upon, so far as this question was concerned. In the other cases the question of imputable negligence on the part of the plaintiff was avoided by saying that 'gross negligence upon defendant's part eliminated the question of contributory negligence based upon the plaintiff's antecedent negligence.'

See, also, Denman v. Johnston, 85 Mich. 396, 48 N.W. 565; Thomas v. Ry., 86 Mich. 496, 49 N.W. 547. In both of these cases contributory negligence was considered a question for the jury.

In Richter v. Harper, 95 Mich. 225, 54 N.W. 768, Mr Justice Montgomery, speaking for all of his associates, was discussing a case where gross negligence was charged. He said: 'It is urged by plaintiff's counsel that the negligence of defendants was so gross and willful as to excuse concurring negligence on the part of the plaintiff, it being claimed that, where the negligence of the defendant is gross or willful, the contributory negligence of the plaintiff is not a defense. This is but another way of stating the doctrine of comparative negligence, which has never obtained in this state. It is true that the contributory negligence of the plaintiff does not prevent recovery in a case where the defendant, who knows, or ought, by the exercise of the most ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury.' The Case of Battishill, alone of the three mentioned, was cited, but it shows out interpretation of that case. He continued: 'As well stated by Judge Cooley: 'In such cases it may be said that the negligence of the plaintiff only put him in position of danger, and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause.' This rule does not premit recovery, notwithstanding plaintiff's contributory negligence, but it recognizes that such discovered negligence of plaintiff, or his negligence which should have been discovered, is not a contributing cause to the injury in a legal sense. This, we think, is the logical statement of the rule as deduced from the authorities. 4 Am. & Eng. Enc. of Law, p. 80, and notes. But it is a rule which has no application to the case at bar.' Citing Talley v. Courter, 93 Mich. 473, 53...