McGee v. Consolidated St. Ry. Co.

• Decision Date: 25 September 1894
• Citation: 60 N.W. 293,102 Mich. 107
• Court: Michigan Supreme Court
• Parties: MCGEE v. CONSOLIDATED ST. RY. CO.

60 N.W. 293

102 Mich. 107

MCGEE v. CONSOLIDATED ST. RY. CO.

Supreme Court of Michigan

September 25, 1894

Error to superior court of Grand Rapids; Edwin A. Burlingame Judge.

Action by Terrence McGee against the Consolidated Street-Railway Company for personal injuries caused by defendant's negligence. There was a judgment for plaintiff, and defendant brings error. Reversed.

Kingsley & Kleinhans, for appellant.

McGarry McKnight & Judkins, for appellee.

LONG J.

Plaintiff brought suit to recover damages for the loss of a foot claiming it was occasioned by the negligent act of the defendant street-railway company in running one of its electric cars over him. The accident occurred at the intersection of South Division street, and Fifth avenue, in the city of Grand Rapids, while plaintiff was attempting to cross the company's tracks, in the dusk of a dark and wet evening, on November 26, 1892. The defendant had parallel double tracks on South Division street, which is flat and level where it crosses Fifth avenue at right angles. The company runs its south-bound trains over South Division street on the west track, while its north-bound trains use the east track. Plaintiff claims that about half past 5 o'clock on that evening, while he was crossing South Division street from the west along the north crosswalk on Fifth avenue, and at the west rail of the west track, he was run against by a motor car without a headlight, then going south at a high rate of speed, without sounding a gong or giving any note of warning, and that the wheel of the car passed over his left ankle, necessitating amputation. The company claims that at the time of the accident it was only early twilight; that it was then operating its motor car with care; that the time for putting on a headlight, according to the custom of the company, had not yet arrived, but that the car was brilliantly illuminated on the inside by many electric lights, and that the gong was sounded at the crossing as usual. The defendant also claims that the plaintiff was wholly at fault in heedlessly walking in front of the visible and illuminated car; and that the motorman, although he saw the plaintiff, had no notice of his intention to pass within the lines of danger until he was so near the tracks that it was too late to stop the car before the accident occurred; that the car, however, was stopped in the shortest time and space possible after the first appearance of danger, and although the rails were wet and slippery, still it came to a halt before the second wheel could pass over the plaintiff's leg.

The city ordinance requires that "the cars of said railway after sunset shall be provided with colored signal lights in front and rear." It cannot be said that it was negligence per se not to have a headlight or light attached to the dashboard of the car, as the ordinance itself provides what kind of lights shall be carried,-that is, "colored signal lights in front and rear,"-and the testimony is uncontradicted that such lights were carried. Plaintiff cites Rascher v. Railway Co., 90 Mich. 413, 51 N.W. 463 on the proposition that it was negligence not to have headlights. That case does not support that proposition. There the plaintiff was driving along a street-car track, after dark, towards a coming car, which was running at the rate of from 15 to 20 miles an hour, and which came suddenly upon him. The car was not lighted inside or out. It was said by this court that "it ought to be lighted in the nighttime, so that its approach can be seen by other travelers; and between twilight and dark, if not lighted, it ought to be run so slowly as to avoid collision, or else give some signal warning of approach." The car in the present case was running from 8 to 15 miles per hour, and under the ordinance it was permitted to run 15 miles per hour. The testimony is quite contradictory on the question whether the gong was sounded. The defendant contends that all the requirements of the city ordinance were complied with, not only in regard to lights, but also in the sounding of the warning signals, and the testimony tends strongly to show that these warnings were given. The most important question in the case, however, relates to the care which the plaintiff exercised in attempting to make the crossing in front of the car. The plaintiff testified that when he neared the curb, and before stepping down into the street, he looked north and south along Division street. He saw a car coming from the south, and it had a headlight. It was then a block and a half away. He then testified as follows: "Q. Now, what was the fact as to whether you looked north or not to see if there was any car in that direction? A. I did. I thought I was safe enough to cross. I didn't expect no car coming from the north. Q. Did you look to see whether there was any, or not? A. Yes, sir. Q. Did you see any? A. No, sir; I didn't observe any." On cross-examination, he testified as follows: "Q. Which way did you look first, to the north or south? A. Well, I was making my way home, of course, and I saw this car coming from the south with a headlight on. Q. Did you look at that first? Did you look at the car coming from the south, first? A. Yes, sir; because I saw that car visibly, you know. Q. Did you notice it the other way? A. I did look the other way, and, of course, I didn't notice nothing, because, if I had, I would not be caught. Q. Where were you when you looked to the north? A. When I looked to the north? Q. Yes, sir. A. It was just when I was starting across. Q. Before you left Division street? A. Yes, sir; when I looked up. Q. Just as you were going to leave Division street, you looked to the north, and didn't see anything? A. Yes, sir. Q. Before that you had looked to the south? A. Yes, sir. Q. Did you continue straight across up to the time of the accident. A. Yes, sir. Q. Without looking either way? A. I know I thought there was no danger of this car coming from the south. It was far enough off so I had time to cross. Q. Were the electric lights lighted at this time? A. Not that I know of. Q. You think not? A. I don't think they were. Q. When you left Division street, did you have to step down? A. After I left Division street. Q. When you stepped off of Division street, did you step down into the roadway? A. Yes, sir. I stepped off of the sidewalk, you know. Q. Was it before you took this step that you looked north and south? A. Yes, sir. Q. After you took that step, just describe what you did. A. Well, I had my eye upon the car coming from the south, and I was not paying much attention to the north, because I didn't expect any car coming from the north, really. Q. You walked straight that way, and kept your eye on the car from the south? A. Yes, sir. It was far enough so that I had plenty of time to cross. Q. Up to the time you were hit? A. Yes, sir." Redirect examination: "Q. About how far is this west track of the railroad company from the sidewalk? A. The west track? Q. The west track of the railroad company. You say you looked to the south and north as you started to go across. How far were you from the track? How many steps would you have to take to strike the track? A. Oh, it must probably be twelve or fifteen feet. Q. As you started to go across,-as you were walking,-did you look both ways? A. Yes, sir; I did, sir." It is therefore made certain by the plaintiff's own testimony that after he left the curb, some 15 feet away (by actual measurement 13 feet 10 inches), he...