Mertz v. Detroit Elec. R. Co.

• Decision Date: 31 October 1900
• Citation: 125 Mich. 11,83 N.W. 1036
• Court: Michigan Supreme Court
• Parties: MERTZ et al. v. DETROIT ELECTRIC RY. CO.

83 N.W. 1036

125 Mich. 11

MERTZ et al. v. DETROIT ELECTRIC RY. CO.

Supreme Court of Michigan

October 31, 1900

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

Action by Jacob G. Mertz and another against the Detroit Electric Railway Company. From a judgment in favor of plaintiffs defendant brings error. Affirmed.

Thomas T. Leete, Jr., for appellant.

Hayes &amp Lawson, for appellees.

MONTGOMERY C.J.

Plaintiff Heppner, who is in the coal and wood business, started at nightfall on the 4th of March, 1899, to deliver a load of coal from his place of business to a customer named Baudie who lived at the corner of Oakland avenue and Belmont street Detroit. He drove out Woodward avenue to Westminster avenue, thence east on Westminster avenue to Oakland avenue, and then north on Oakland avenue to go to Mr. Baudie's house, which was about five or six blocks north of Westminster. Defendant's cars are operated on Oakland avenue upon a double track. The street is unpaved, and at this season of the year was very muddy. Plaintiff drove between the tracks on Oakland avenue, the wheels upon one side of his wagon being between the rails of the right-hand track and the wheels upon the other side between the two tracks. He did this because he had been told that that was the best route to travel. It was about 7 o'clock in the evening. It had started to snow, and the snow was coming down from the north. There was testimony showing that the plaintiff's horse and cart could be seen for a distance of three or four blocks. The plaintiff continued driving upon the tracks for several blocks. The roads pulled hard, and he had to rest his horse every little while. He testified that he had been on the track 15 or 20 minutes before the car appeared. He claimed that he did not leave the track when he saw the car coming, because it was difficult to do so, the wagon having settled into the mud, and the track being two or three inches higher than the ground. He saw the car approaching him when it was five or six blocks away. He testified: 'I had gone a little over two blocks on Oakland avenue, when I saw the car come in sight, and then I had two or three blocks more to go to get to Belmont avenue. I kept on going up Oakland avenue after the car was in my rear, coming in the same direction. I kept looking back to see the car coming, and I kept on driving on the track all along.' The plaintiff was asked: 'Why didn't you signal? Why didn't you go back to signal?' and replied: 'I did not think it was necessary, because I thought they could see me as well as I could see them. I never gave it a thought to go back to signal.' When the car was about 30 or 40 feet away, the plaintiff started to yell, and wave his hand at the motorman. The motorman testified that it was a very dark night, and that he was standing close up to the window of the vestibule, keeping a sharp lookout; that the snow was coming down and melting upon the window pane; that the car had a headlight, which threw a light down the track; that he had been looking out ahead all the time, and saw the wagon first when it was from 75 to 100 feet down the track; that he immediately reversed the controller, and the fuse wire burned out; that he caught hold of the brake, and did his utmost to stop the car, but that the little snow on the track made it bad for the wheels, causing them to slide, and that he could not stop the car until it struck the wagon; that, if the wagon box had been higher, it would have passed over the deadwood of the car, and broken into the vestibule, and probably have caused serious, if not fatal, injury to the motorman. The motorman and conductor both testified that the car was running about 10 miles an hour, and that as good a stop was made as was possible under the circumstances. The motorman also testified that he was running on six points--what they call full speed--just before he saw the wagon. Plaintiff recovered a judgment against the defendant of $100, and defendant has appealed therefrom to this court.

It is contended that upon this state of facts a verdict should have been directed, because no negligence on the part of defendant was shown, and also because the evidence shows the plaintiff Heppner to have been negligent. There was ample evidence to justify the submission of the question of defendant's negligence to the jury. It appears that the motorman was familiar with the street. Presumptively he knew something of the difficulty the plaintiff would have in turning off the track; and there was evidence to justify a finding that he might have seen the wagon, if he had looked ahead, three blocks away, and that he approached to within 50 or 75 feet of the wagon at full speed, and without...