Laethem v. Ft. Wayne & B.I. Ry. Co.

• Decision Date: 18 May 1894
• Parties: LAETHEM v. FT. WAYNE & B. I. RY. CO.
• Court: Michigan Supreme Court

58 N.W. 996

100 Mich. 297

LAETHEM v. FT. WAYNE & B. I. RY. CO.

Supreme Court of Michigan

May 18, 1894

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by Emil C. Laethem against the Ft. Wayne & Belle Isle Railway Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant brings error. Affirmed.

Edwin F. Conely and Orla B. Taylor, for appellant.

James H. Brewster, for appellee.

LONG J.

This is an action brought to recover for injuries sustained by the alleged negligence of the defendant company. The defendant operates a single-track street railway with horses. The plaintiff, on January 6, 1893, in the morning was driving his milk sleigh on Champlain street. He stopped his sleigh, and took a can of milk from it into the sleigh of Miss Le Fevre, standing alongside of his. There was a snowdrift near the curb. Miss Le Fevre's sleigh stood near the drift, and the plaintiff's between hers and the railway track. The sleighs were close together, and the plaintiff's stood very near the track. As the plaintiff was lifting the can out, with his horse headed towards the west, a two-horse car came from the west; and before he could put the can into the other sleigh the car struck his sleigh and overturned it, and injured him. As he saw the car nearing his sleigh, he threw the can into the other sleigh, and reached for his lines. He knew that the car was coming, and that it overhung the track, and that his sleigh was so close that it might be struck. The driver of the car saw the plaintiff's sleigh, but drove on without making any stop. Under these circumstances, the court directed the jury to determine whether the defendant exercised reasonable care and whether the plaintiff, in the management of his sleigh as it stood there in the street, was exercising due care, and that if they found from the evidence that the plaintiff while in the exercise of due care, was injured by the negligent driving of the defendant's servant, the plaintiff should recover. The jury returned a verdict in favor of the plaintiff for $300. Defendant brings error.

Defendant's counsel cites certain other facts appearing from the testimony, and upon which it is claimed the court should have directed verdict in favor of defendant. It is said by them that the plaintiff and Miss Le Fevre were engaged there two or three minutes before the car struck the sleigh; that it is clear that the car was not only in sight of the plaintiff, but very near him, when he placed the can upon the edge of Miss Le Fevre's sleigh, and yet he did not look for a car until he had placed himself in this dangerous position; that, had he looked, he would have seen the car coming, as he knew cars were in the custom of passing along every 10 minutes, and that he had driven over that road every day for three or four years; that he was negligent, therefore, in attempting to put the can out of his sleigh into hers without looking for a car, when he knew that his sleigh stood in such close proximity to the track that it might be struck by a passing car. It is contended that there was no excuse for deliberately putting himself in a place of danger. We think the question was one for the determination of the jury. As was said in Rascher v. Railway Co., 90 Mich. 413, 51 N.W. 463: "The right of the railway in the street is only an easement to use the highway in common with the public. It has no exclusive right of travel upon its track, and it is bound to use the same care in preventing a collision as is the driver of a wagon...