Merritt v. Foote

• Decision Date: 01 October 1901
• Citation: 87 N.W. 262,128 Mich. 367
• Court: Michigan Supreme Court
• Parties: MERRITT v. FOOTE.

87 N.W. 262

128 Mich. 367

MERRITT v. FOOTE.

Supreme Court of Michigan

October 1, 1901

Error to circuit court, Jackson county; Erastus Peck, Judge.

Action by Levi Merritt against William A. Foote, receiver of the Jackson Street Railway Company. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

The plaintiff sued defendant to recover for injuries received by him when attempting to cross the street car track of the defendant. The circuit judge directed a verdict in favor of defendant. A sufficient statement of the case is found in the following instruction of the court: 'To entitle the plaintiff to recover in this action, it is necessary that he should show by a preponderance of the evidence that the defendant was guilty of the negligence alleged in the declaration; and, second, that he was himself, as he avers in his declaration, in the exercise of due care. Now, if we assume,--as I do in this disposition of the case,--that the plaintiff has established the first of these propositions viz. that the defendant was guilty of the negligence charged still he cannot recover unless he also established by a preponderance of the evidence the second of the propositions viz. that he was himself in the exercise of due care, and did not, by his own negligence, at the time and under the circumstances, contribute to the accident and consequent injury. In my judgment, no view of the testimony which could be fairly taken by the jury would justify you in finding that the plaintiff was himself free from contributory negligence. Such parts of the evidence as it is necessary to refer to in giving my reasons for this instruction are substantially as follows: The accident occurred on the morning of September 28, 1899. It was a clear morning, and the collision happened about 10 o'clock. The plaintiff, who appears to be a man of good intelligence, and in middle life, had lived some years in this city. His business required him to travel about the city considerably. He was familiar, in a general way with the manner in which cars were run upon the street railway; had seen them run at a high, and what he regarded as a dangerous, rate of speed, before the accident occurred. During a portion of his residence in Jackson he had lived at two different places for a short time on the line of the railway. At other times he had lived not far removed from the tracks. His present home, where I think he has resided about eight years, is not far removed from the street car track. On the morning in question he was approaching Main street on Elm avenue, which crosses Main street in the eastern part of the city at about right angles. His horse was a fair traveler was accustomed to the cars, and was not afraid of them. He was easily manageable, and subject to the control of the plaintiff. He was walking. When he arrived at about one rod south of the south line of the sidewalk, on the south line of Main street, the plaintiff, for the purpose of seeing whether any cars were approaching, and it was safe to make the crossing, looked eastwardly. By reason of obstructions that existed there,--trees and a house on the southeast corner,--he could only see eight or nine rods east of Elm avenue, and saw no car within his range of vision. He continued to drive towards the corssing on a walk, and looked west, and continued to look west until at or about the time the accident occurred. When he reached the sidewalk, probably, certainly when he reached the curb on the south side of Main street, he could easily see west to the Michigan Central passenger house, a distance of three-quarters of a mile. There was nothing to interrupt his vision at that time, and he saw that no cars were approaching from the west. He could, from that position, have looked east to the east end of the street car tracks, a distance of half a mile, and could have seen any car approaching there within that distance. He did not look east, but, after satisfying himself that no cars were approaching from the west, he continued to look west, at the people, he says, and did not return his view to the east until just about the time that the car struck him. Now, the distance from the south rail of the street car tracks to the curb on the south side of the street was twenty-five feet, and it was forty-four feet to the south line of the sidewalk. His vehicle, from the nose of the horse to the extreme rear end of the wagon, was about eighteen feet. His seat was about ten feet from the nose of the horse, and about eight feet from the rear end of the wagon; so that when his seat reached the curb, where he would have a perfect view both up and down Main street, the head of the horse would be about fifteen feet from the south track of the street railway company. Now, it was the plaintiff's duty to use his eyes and ears to avoid danger. It was his duty to look and listen in both directions, and, if he failed to do so, and his failure to perform that duty, to exercise that care, contributed to the accident which followed and resulted in the injury, he cannot recover. In my judgment, the proof plainly and indisputably shows that the plaintiff failed to perform that duty. He did not look east at all after he could see more than eight or nine rods. He did not at least after he came out onto the street, and when he might have seen any car approaching within half a mile. Now, if his carelessness in that regard contributed to his injury, to the accident, it will bar his recovery; and I think there is no room for a difference upon these proofs that it did contribute to the accident. If he had looked, he positively, under the evidence, would have seen the approaching car, and would have seen it approaching at rapid rate. * * * It was imprudent for him to cross, or to attempt the crossing, under the circumstances, wherever the car might have been, and approaching at such a rate of speed. * * * Under the testimony this car was approaching at a rapid rate of speed. It has been argued to me upon this motion by the plaintiff's counsel that the testimony justified the jury in believing that it was approaching at certainly twenty miles an hour, probably thirty miles an hour. When he should have looked east to see it, he must have been within the distance between the curb and the should rail, which could not have exceeded twenty-five feet, and his horse's head must have been...