Motyka v. Detroit, s. 3-5.

Decision Date04 January 1932
Docket NumberNos. 3-5.,s. 3-5.
CourtMichigan Supreme Court

Error to Circuit Court, Wayne County; Vincent M. Brennan, Judge.

On rehearing.

Former opinion adhered to, and judgment of trial court reversed and remanded for judgment on verdict.

For former opinion, see 253 Mich. 647, 235 N. W. 825.

Argued before the Entire Bench.Arthur A. Koscinski an Robert J. Wojcinski, both of Detroit, for appellants.

Frederic T. Harward and Frederick V. Slocum, both of Detroit, for appellees.


Since this court in Davis v. Pere Marquette Railway Co., 241 Mich. 166, 216 N. W. 424, adopted the standard of conduct laid down in Baltimore & Ohio Ry. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645, it has been held, quite consistently, that one about to cross a railroad track must take all reasonable precaution and be assured that it is safe to cross, and that failure so to do is contributory negligence, precluding recovery. This holding generally has been applied to so-called open crossings. But this case ought not to be treated as an open crossing case. Nor can it be said to be a case where the flagman was not on duty when plaintiffs attempted to cross, nor one where no act or conduct of the flagman could be construed as an invitation to cross or an assurance of safety. When plaintiffs' decedents came to the crossing, the watchman was on the crossing. It was then a protected crossing. It is settled law, and it is common sense, that one may place some reliance on the protection afforded at the crossing. That being true, is it not wrong to hold that one about to cross a protected crossing must on his own account take all the precautions and have all the assurances of safety required as to open or unprotected crossings? Does not such a holding ignore completely the settled law that one may rely to some extent at least on the protection afforded at the crossing? If one may place no reliance on gates and flagman, why have them?

In these cases, taking the facts, as we must, in the light favorable to plaintiffs, it appears that the boys came to the crossing protected by a flagman. They stopped and looked. The flagman's shanty was there. The crossing was obstructed by a moving train. The flagman was on the crossing. The train passed. The crossing cleared. The flagman left the crossing. The boys started across and were killed by a train which they might have seen, and, had this been an open crossing, it would be held that they should have seen it. The flagman should have protected this crossing as against such train and, according to some of the evidence, he did not. The boys ought not to be held guilty of contributory negligence as a matter of law in not looking more carefully before crossing the track in view of the conduct of the watchman. It was for the jury to say whether in view of the facts their failure to look more carefully was contributory negligence.

Adhering to former opinion, the judgments should be reversed, and causes remanded for judgments on the verdicts, with costs.

McDONALD, POTTER, SHARPE, and FEAD, JJ., concurred with CLARK, C. J.

NORTH, J. (concurring in affirmance, on rehearing).

I concur with Justice WIEST because there is no testimony in this record tending to show that any invitation or misleading signal was given by the crossing tender which induced plaintiffs' decedents to attempt to cross. In such a case, one who, at a highway crossing in broad daylight and in the absence of any distracting circumstance, walks in front of an approaching locomotive which would have been observed by exercise of the slightest degree of care, is guilty of contributory negligence barring recovery for injuries sustained.

WIEST, J. (for affirmance, on rehearing).

The facts are not in dispute. No presumption of care can be indulged, for plaintiffs called the sole eyewitness and his testimony must be accepted as true. Defendant's negligence must be conceded.

The statute required a flagman at the crossing when ordered by public authority. One was ordered and was absent from his place of duty at the time of the accident. The statute, under penalty, also requires warning signals for the protection of crossings and all such safety measures are on a parity, but no one ever heard of recovery had by one who failed to look before crossing because he heard no signal. Plaintiffs do not claim any signal was given the young men to cross the tracks. The negligence alleged was failure to warn the young men of danger. The point of law involved is the same as if the railroad company had failed to give warning by bell or whistle at a crossing.

As said in Duncan v. Mo. Pac. Ry. Co., 46 Mo. App. 198, 207: ‘And so here this watchman's duty was to give notice of approaching trains. It is of the same nature-performing the same office-as ringing the bell or sounding the whistle. The same rule will apply whether the signal should come from a ringing bell, a sounding whistle or the words of caution from the flagman or the watchman.’

The young men were not invited to cross the tracks for no flagman was in sight. Seeing no flagman, the young men walked upon the track without looking in the direction cars were approaching, and were struck and killed. Had they looked, while in a safety zone, as they might, they would have seen the cars and not have stepped upon the track.

It is not the law that a traveler is bound to exercise only such care as would protect him from injury if the railroad company be not at fault. It is not a harsh rule that a man should turn his head to look for a train that may be in plain sight and injure or kill him if he steps upon the track. This degree of care rests upon him and want of care by others does not relieve him.

As stated in 2 Wood on Railroads, p. 1518: ‘No man has a right to depend entirely upon the care and prudence of others; he is bound himself to exercise due care to prevent injury to himself from the lack of proper caution in others.’

Did the absence of the flagman relieve the young men of the duty to look where they were going? Upon this we quote the following from White, Personal Injuries on Railroads, § 1001: ‘But of course the absence of a flagman, like any other act of negligence on the part of a railroad company, will not relieve the traveler of the duty to look out for himself, as no one has a right to rely wholly upon the care and prudence of others for his own protection from danger. And if the train could have been seen approaching or if the traveler could have heard it and failed to look or listen, then the mere fact that the flagman was absent or failed to signal him, will not excuse his otherwise negligent conduct.’

And again from Wood, p. 1522: ‘While he has a right to expect that the company will discharge its duties, it does not release him from his obligation to exercise ordinary care to protect himself against a possible breach of its duty on the part of the company.’

It cannot be said, as matter of law, that one signaled by a flagman to cross the track is thereafter required to stop, look, or listen for trains, Lake Erie & Western R. Co. v. Sanders, 72 Ind. App. 283,125 N. W. 793; but it can be said, as matter of law, that, where a crossing is supplied with a flagman and the flagman is absent and does not invite a crossing, one is guilty of contributory negligence in crossing without looking and listening. Cadwallader v. Louisville, New Albany & Chicago Ry. Co., 128 Ind. 518, 27 N. E. 161.

‘But absence, or negligence of a flagman, will not excuse the traveler about to cross the track from looking both ways and listening.’ (Syllabus) Berry v. Pennsylvania R. Co., 48 N. J. Law, 141, 4 A. 303. Again quoting: “To hold that a party is excused, where he has been careless, because the other party has failed to give the accustomed signals, or for any other act of negligence on his part, strikes at the principle on which such actions are based. Such a rule is not sustained by any of the adjudged cases.” Wilcox v. Rome, Watertown & Og. R. Co., 39 N. Y. 358, 100 Am. Dec. 440, quoted with approval in Ormsbee v. Boston & Providence R. Corp., 14 R. I. 102, 107, 51 Am. Rep. 354: ‘Failure on the part of those in charge of the locomotive to ring a bell or sound a whistle as a warning...

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