Morgan v. Detroit

• Decision Date: 15 April 1926
• Docket Number: No. 93.,93.
• Citation: 234 Mich. 497,208 N.W. 434
• Court: Michigan Supreme Court
• Parties: MORGAN v. DETROIT, J. & C. RY.

234 Mich. 497

208 N.W. 434

MORGAN

v.DETROIT, J. & C. RY.

No. 93.

Supreme Court of Michigan.

April 15, 1926.

Error to Circuit Court, Jackson County; James A. Parkinson, Judge.

Action by John W. Morgan against the Detroit, Jackson & Chicago Railway. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ. Cobb, Bisbee & Wilson, of Jackson, for appellant.

C. G. Parshall and R. H. Rossman, both of Jackson, for appellee.

BIRD, C. J.

The plaintiff had judgment in the sum of $8,000 in a personal injury case, and defendant reviews the proceedings by error.

Plaintiff lives on Maple street on the north side of defendant's interurban railway track in the village of Michigan Center. Late in the afternoon on the 7th day of October, 1923, plaintiff left his home, a few rods north of the railway intersection, with his automobile. He was occupying the front seat, and his wife and a lady companion the back seat. He drove to the intersection and stopped about 10 feet from the north rail. He looked and listened, but neither saw nor heard any car. He then started across. The road was sandy, and there was no planking against the rails. As he started, he glanced to the east and saw nothing, and then looked to the west. The car was close to him, and coming very fast. He proceeded, but before his rear wheels cleared the track the car struck his automobile, demolishing it, killing his wife and the lady companion, and injuring him. This suit was begun to recover for his injuries and the damages to his automobile.

The negligence of defendant principally relied upon by plaintiff was excessive speed and want of any warning of the approach of the car.

The defendant argues in this court that the court erred in refusing to direct a verdict for defendant because no negligence of defendant was shown, and it was further contended that the plaintiff was guilty of contributory negligence.

Was the Whistle Sounded?

Several witnesses testified that the whistle was not sounded. All of them, save one, qualified themselves to be witnesses on that question by showing circumstances which tended to show that they were watching for the car and for the signal. One of them, the attorneys were in dispute as to his testimony, so the court left it to the jury to determine what his testimony was, and instructed them, if he testified as defendant contended, his testimony would have no probative value. There was testimony that the whistle was sounded. We think there was competent testimony to carry that question to the jury.

Excessive Speed.

The testimony fixing the rate of speed the car was going was all the way from 35 to 65 miles an hour. The motorman admitted he was behind his schedule, and was trying to make up time. The proof is rather convincing that the car was going at least 50 miles an hour, but, whatever the rate of speed was, it was going very fast, and it was a question for the jury to determine, under all the circumstances and surroundings, whether it was prudent for defendant to operate its car through the village at the speed at which it was going. Hudson v. Grand Trunk Western Railway Co., 198 N. W. 339, 227 Mich. 1. In the case cited, which was very similar on the facts to the one we are considering, we discussed the rule, and said, in part:

‘The principal items of negligence asserted by the plaintiff in his declaration and proofs were excessive speed, failure to keep the electric crossing bell in repair, and a failure to give the customary crossing signal. The testimony shows the train was moving from 40 to 45 miles an hour. Whether that rate of speed was excessive is a relative one. It depends on the attendant circumstances. A rate of 40 or 45 miles an hour in the open country would not be negligence, as a matter of law, and conditions might be such that it would not be negligence to pass through a village at that rate of speed. It would depend, however, on how well the crossing or crossings were protected, how straight the track was, whether the view of one crossing the tracks would be obstructed by curves, cars, foliage, or buildings. Thayer v. Railway Co. 93 Mich. 150;Guggenheim v. Railway Co. 66 Mich. 150;Ommen v. Railway Co. 204 Mich. 392; and cases cited.’

We also quoted with approval the following paragraph from 22 R. C. L. 947:

‘The general rule is that, in the absence of a prohibitory statute or ordinance, a railroad company may ordinarily run its trains at such speed as it sees fit, and that a charge of negligence cannot be predicated on the rate of speed at which a train is run, unless there are attendant circumstances which make such speed negligence. A rate of speed that would be entirely safe under some...