McKernan v. Detroit Citizens' St. Ry. Co.
| Decision Date | 22 December 1904 |
| Citation | 101 N.W. 812,138 Mich. 519 |
| Parties | McKERNAN v. DETROIT CITIZENS' ST. RY. CO. |
| Court | Michigan Supreme Court |
Error to Circuit Court, Wayne County; Morse Rohnert, Judge.
Action by John McKernan against the Detroit Citizens' Street Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.
Orla B. Taylor, for appellant.
Brennan Donnelly & Van De Mark, for appellee.
This is an action to recover for injuries sustained by the alleged negligence of the defendant. The case was submitted to the jury, resulting in a verdict for defendant. The testimony on the part of the plaintiff tended to show the following facts At the time of the accident the defendant was operating a single-track railway upon Congress street. Electric cars were operated in an easterly direction over this track. Fire engine house No. 19 is located on the north side of Congress street, between Chene street, on the west and Joseph Campau avenue, on the east. The distance from Chene street to Joseph Campau avenue is 881 feet. The engine house is 686 feet east of Chene street. The block being a very long one, there is a trolley station 271 feet west of the west lot line of the engine house. The engine-house lot is 55 feet in width, the building extending from the east line of the lot to within 13 feet of the west lot line. There are two 10-foot doorways, through which the engine and hose cart gain entrance to the street. These doors are separated by a space of 5 feet. Each doorway has two doors, which swing outward, and when opened can be seen from the corner of Chene street. At the time of the accident the hose cart came out of the west door, and the engine out of the east door. Congress street is 60 feet in width. The paved portion of the street is 30 1/2 feet in width, the car track is 4 feet and 7 inches wide, and the distance from the track to the curb line is 12 feet and 10 inches. The engine house is 31 feet from the curb line, and there is a brick-paved runway, with a fall of a little over 2 feet, leading down to the street. The fire engine weighed 9,600 pounds. It was about 12 feet long from the front end of the suction pipes to the back end. The suction pipes stick out about 2 feet behind the rear wheels. Three horses were used to draw the engine. In order to handle it as it emerged from the engine house, it was necessary to take a course in a southwesterly direction to the southerly side of the car track, gradually turning to the west. The plaintiff at the time of the accident was the engineer of the fire engine. As such, it was his duty, when the engine left the house, to take his position at the rear end of the engine, between the suction pipes. He had nothing whatever to do with the management of the horses. The accident occurred on September 25, 1900, at about 11:30 in the forenoon. It was a warm, clear day. The car was proceeding in an easterly direction at a speed which is variously estimated from 8 to 15 miles an hour. Just after the car passed the trolley station, the hose cart emerged from the west door of the engine house. Capt. Ortwine and the driver, Kemberling, were upon the seat of the hose cart. The bell was rung before starting and while leaving the engine house. The ringing continued until the hose cart was clear out into the street. Kemberling turned westerly and proceeded about 50 or 60 feet in the car track, when Ortwine called his attention to the fact that the approaching car had not stopped in the usual manner. He then turned to the left, out of the track, and the back end of the hose cart, as it swung out of the track, cleared the car by about 2 feet. The car was about 100 feet from the hose cart when Kemberling turned off the track. Thus the car passed the hose cart about 100 feet westerly of the engine house lot line, or about 113 feet from the house itself. Just as the hose cart passed the car, the engine came out of the house. Lieut. Murphy and Schneider, the driver, were seated upon the engine seat. Plaintiff was standing upon the rear of the engine, between the suction pipes. After clearing the doors of the house, Schneider drove in a southwesterly direction across the car track. The engine was nearly across the track, when the car struck the right hind wheel with great violence. The engine, weighing nearly 5 tons, was tipped over, the tire of the wheel, 2 inches wide and seven-eighths of an inch thick, was cut in two, and plaintiff was severely injured. The collision occurred practically on the line of intersection of the west lot line with the car track. The motorman was an experienced man, and was entirely familiar with the location of the engine house. He heard the alarm, and he saw the horses just as they were coming out of the house. He states that the track was slippery and wet. There was evidence, however, that it was a warm, clear day, and that the track was dry. Evidence of experts was given as to the distance within which a car could be stopped when going at various rates of speed. Witness Smith testified that a car going at the rate of 10 miles an hour could be stopped in 80 feet, and [138 Mich. 523] at 7 miles an hour in 50 feet, and at lesser rates in a correspondingly less distance. Witness Haire fixed the distance at 100 feet and 60 feet, at the rates of 10 and 7 miles, respectively. Cole, the motorman, says that his schedule time was 12 miles an hour, and that when the car was in proper shape he could make stops in a car length--about 30 feet. A rule of the company reads as follows: 'Motormen, when passing schools at the time of commencement or the lettering out of same, or when passing by engine houses, must not go faster than four miles an hour.'
The circuit judge submitted to the jury the question of defendant's negligence, but held that the defendant's rule cut no figure in the case. The circuit judge also held that the negligence of the driver of the fire engine should be imputed to the plaintiff, and that 'the negligence of the fire people [evidently meaning the driver] in not looking and listening before they came out of the engine house relieved the company from liability for any negligence on the part of the motorman in violation of any rule which required him to keep his car in check in approaching the engine house, up to the moment when the motorman had knowledge that the apparatus was coming out of the house.'
It was strenuously insisted on the argument in this court that the form of the plaintiff's declaration was such as to preclude a recovery based upon negligence of the motorman at any time before he had actual knowledge that the engine was coming out of the engine house, and that the jury must have found, under the court's instruction, that there was no negligence on the part of the motorman after discovering the fire engine, and that therefore the questions discussed by appellant became immaterial. It is not altogether clear that the jury would understand from the charge that the question of the motorman's negligence was the only one left for consideration; but, however this may be, the record shows that the plaintiff's whole case was covered by the testimony, and it does not appear that any question was made as to the sufficiency of the pleading to cover the case made. We cannot assume that, had such a point been made, the circuit judge would have refused an amendment. See Ross v. Township of Ionia, 104 Mich. 320, 62 N.W. 401; Findlay v. C. & G. T. R. R., 106 Mich. 700, 64 N.W. 732; Garn v. Lockard, 108 Mich. 196, 65 N.W. 764; Thomas v. Ann Arbor R. R., 114 Mich. 59, 72 N.W. 40; Robinson v. Railway Co., 103 Mich. 607, 61 N.W. 1014. The circuit judge apparently construed the rule above quoted as imposing no obligation upon the motorman to approach the engine house at a reduced rate of speed, but was of the opinion that the four-mile limit was fixed for the period of time when the car was actually passing the forty-two feet in front of the engine house. We think such a construction renders the rule wholly ineffectual to accomplish any good. As pointed out by plaintiff's counsel, if the west line of this engine house had been reached by the car with no apparatus coming out of the house, the safety of all concerned would have been best assured by the car being speedily removed from in front of the engine house. The real purpose of this rule was evidently to challenge the attention of defendant's employ�s to the necessity of approaching the engine house with the car under control, and fixing a speed of four miles an hour as a safe limit. The existence of this rule did not add to the defendant's obligations to the public, as shown by the opinion of Mr. Justice HOOKER, filed herewith. If, however, knowledge of this rule was possessed by the plaintiff, this might have a distinct bearing upon the question of his contributory negligence.
Was the negligence of the driver of this engine imputable to the plaintiff, in such sense as that, if the driver was guilty of contributory negligence, recovery by the plaintiff is precluded? We think not. Whatever may be the rule as to joint undertakers where one may be said to be the agent of the other, or between employer and employ�, where one is clearly the agent of another, or between a driver and a mere volunteer, in which case, perhaps, an implied agency may be said to exist, we are unable to see why, in a case like the present, where two fellow servants having duties to perform, the one wholly distinct from the other are severally engaged in the performance of such duties, the negligence of one should be imputed to the other. The cases are numerous in which the courts have refused to apply the doctrine of imputed negligence in such cases. A case in point is Bailey v. Jourdan, 18 App.Div. (N. Y.) 367, 46...
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