LONG
J.
May 22
1893, John O'Grinnell, the deceased, and eight others
constituting the Frank Tucker Theatrical Company, were
engaged in giving a street parade in Lansing. They had gone
to North Lansing, and had returned on a street car, getting
off the car a few blocks below Michigan avenue, where the car
stopped. They passed ahead of this car, four walking on one
side of the car track, single file, about six
feet apart; the others walking on the other side of the
track, in the same order. Mr. Grinnell was on the east side,
and near the track. Six were ahead of him, each playing a
wind instrument, and two behind him playing snare and bass
drums. He was playing a cornet. The car from which they
alighted followed soon after, and overtook them just as they
reached Michigan avenue. The platform of the car passed
Grinnell, but the body of the car struck him on the shoulder,
knocking him down. Mr. Grinnell on the trial testified:
"I was very near the car track, but not between the
rails. I remember something striking me. I heard nothing;
heard no bell indicating any warning. I recollect something
struck me, and after that the first thing I knew I was on my
feet, and people were holding me up. I was struck about the
point of the right shoulder blade, and knew that I was hurt
when I first came to my senses. They took me to the hotel.
Two of my teeth were loose, beside one that was knocked out.
After getting to the hotel, while being confined there, I
noticed the injury to my back, my arm, and my right side, and
slight injury to my right hip. I got hurt on Monday, and got
out on Friday. Before leaving the hotel, I noticed a sore
spot on my right chest, perhaps two or three days after the
accident. It was followed by spitting of blood. I never had
anything of the kind before. This spitting of blood continued
for about two weeks. At the end of two weeks, or perhaps a
little longer, I had a dry cough started,-hacking cough,-and
I have had it ever since up to about five weeks ago, and from
that time until now I have been coughing very bad, and it is
growing worse all the time. When I was hurt I weighed one
hundred and thirty-two pounds; now I weigh one hundred and
nine pounds. Aside from whooping cough and scarlet fever,
which I had when quite small, I have never been sick."
He was asked: "State to the jury whether you were
thinking about or looking out for any indication that the car
was coming. A. Yes, sir; I always did, because I always had
to work so close to the track. I was playing at the moment I
was hurt. I thought I was far enough from the track to be out of the way. I was looking out for the
car, and was positive that I would hear a signal, if there
was any near." On further examination, Grinnell
testified that he knew the car could not pass without hitting
him, but that he was looking out for it, and had no doubt
that he could hear the bell and get out of the way. Some
considerable testimony was given tending to show that no bell
was rung or other warning given when the car approached
Michigan avenue, where the accident happened, and there was
testimony also that the car was running at a rate of speed
greater than usual, and that it did not slow down when it
reached Michigan avenue. Just what rate of speed it was going
plaintiff's witnesses do not state, but many of them say
that it was faster than the car usually ran, and some say it
was running rapidly. One witness testified that he had been
in the employ of the defendant company before that time. He
noticed the car approaching the band, and, when within half a
car length of Grinnell, he noticed the lever in the fourth
notch,-that is, next to the last notch,-the last notch giving
the car the fastest speed it could attain, and that no bell
was sounded. Both the motorman and the conductor, as well as
others, testified that the bell was sounded, and that they
were going slow, the motorman saying, "Not more than
three miles an hour." The conductor testified, further,
that his orders were to slow down at the Michigan avenue
crossing. The motorman testified that a high wind was blowing
from the west, and, as he saw the members of the band ahead
of him, his attention was directed to the man carrying the
bass drum, as he feared he would be blown upon the track. He
saw Grinnell. Saw him brace up against the wind, but did not
pay so much attention to those on the east
side, as he was afraid the wind would carry those on the west
side onto the track. He says that when about five or six feet
from Grinnell he saw him. He was walking along blowing his
horn, and as the wind came down Michigan avenue he leaned
over to protect himself against it, and that was the reason
the car struck him. If Grinnell had continued to walk the
same distance from the track, the car would not have struck
him. The motorman denies that the lever was in the fourth
notch, and says that he did not have any current on when he
crossed Michigan avenue, but that he ran about 34 feet after
he struck Grinnell. On his cross-examination he was asked:
"Suppose you had run up behind these people carefully
and slowly, until you had attracted their attention by your
bell, that would not have been a difficult job? A. No,
sir."
Under
this testimony, the court directed the jury: (1) That
Grinnell was guilty of
negligence, and "under some circumstances this would
prevent a recovery, but in this case it may or may not, as
you may determine regarding certain other facts to which I
shall call your attention." (2) "The car which
struck the plaintiff had that same forenoon carried the band
to North Lansing. The same conductor and motorman were in
charge. They knew that the band paraded Franklin street. They
had brought this band from the Franklin street parade down
Washington avenue to Ionia street, and there let the band
off. The band from that point had proceeded down Washington
avenue, to the knowledge of the street-car men, had passed
the street car in front of the bank, was in plain view of the
motorman when the car started, and the motorman knew what the
purpose of the plaintiff and the other members of the band
was in being on the street. It was not a case where the
injured party was supposed to be crossing the street, but it
is a case where the motorman in charge of the car knew that
the band was parading the street, knew that
their backs were toward him, knew the positions of the
members of the band, and knew the noise they were making with
their instruments. It is sometimes very correctly said that
if one discovers another to have been negligent he must take
precaution accordingly, omitting which, he is liable to the
other for the damages which follow from his own want of care;
for, however nearly related two separated negligences may be,
the one cannot bar an action for the other unless it is
contributory, and, though an unseen position might contribute
to an accident, a discovered one cannot. The plaintiff,
Grinnell, was not a trespasser upon the street-car tracks in
any sense. The right of the street railway in the street is
only to use the street in common with the public. It has no
exclusive right of travel, even upon its track; and it is
bound to use the same care in preventing a collision as is
the driver of a wagon or other vehicle. Street cars have
precedence necessarily in the portion of the way designated
for their use. This superior right must be exercised,
however, with proper caution and due regard for the rights of
others; and the fact that it has a prescribed route does not
alter the duty of the defendant to the public, who have a
right to travel upon its tracks until met or overtaken by its
cars. There is no question made in this case but that the
motorman saw this band. He says that he saw the plaintiff,
and he says that because of the wind he was watching the man
with the bass drum, on the west side of the track. If the
plaintiff, Grinnell, and other members of the band, were, or
if the plaintiff, Grinnell, alone was, when viewed from the
motorman's position on the car, in a place of danger,
either on or near the track, it was the duty of the motorman,
taking into consideration his knowledge of the situation and
of the purpose and intention of the band,-it was the duty of
the motorman to run his car with corresponding care, and in a
manner reasonably safe under the circumstances, both as to
speed and control; and if, under these circumstances and such
duty, the motorman intentionally ran his car at what he knew
was a high and dangerous rate of speed, not, indeed,
intending to injure any one, nor wishing to injure any one,
but in reckless disregard of the consequences to the
plaintiff and members of the band, and if because thereof the
plaintiff was injured, then the company was to blame, and the defendant railway company is liable to the
plaintiff for whatever injury it so caused him. If the
plaintiff, Grinnell, was not in a place of danger, as viewed
from the motorman's position, then the railway company is
not liable. If the car was not running at a rate of speed
which the motorman knew, or a reasonble man ought to have
known, dangerous...
