Nagi v. Detroit United Ry.

• Decision Date: 18 June 1925
• Docket Number: No. 69.,69.
• Citation: 231 Mich. 452,204 N.W. 126
• Parties: NAGI v. DETROIT UNITED RY.
• Court: Michigan Supreme Court

231 Mich. 452

204 N.W. 126

NAGI

v.DETROIT UNITED RY.

No. 69.

Supreme Court of Michigan.

June 18, 1925.

Error to Circuit Court, Wayne County; Alfred J. Murphy, Judge.

Action by John Nagi against the Detroit United Railway. Judgment for plaintiff, and defendant brings error. Affirmed on condition of remittitur.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Wm. G. Fitzpatrick, of Highland Park (Wm. E. Tarsney, of Detroit, of counsel), for appellant.

Henry H. Roberts, of Detroit, for appellee.

CLARK, J.

Plaintiff had verdict and judgment for $30,000. Defendant brings error. Two questions were disposed of correctly by the trial judge in deciding a reserved motion to direct a verdict for defendant:

‘The meritorious question presented under this motion is, whether plaintiff upon his own showing is precluded from recovery by carelessness on his part which either occasioned or contributed towards his injury; and secondly, whether there is any testimony tending to show negligent operation of the defendant's interurban street car.

‘The plaintiff's testimony, giving to it that favorable construction which is requisite under a motion of this character, showed that he was driving the Ford automobile, accompanied by a male adult and the latter's young son, at about, 7:30 p. m. on February 16, 1921. He was driving north on West Jefferson avenue, toward the city of Detroit. The pavement was wet and slippery upon the paved portion of the roadway. That portion of the highway between the street car tracks was unpaved, was affected by the moisture, and its roadbed was, at a somewhat uneven grade, a little lower than the top of the street car rail. The plaintiff claims that, in order to avoid another automobile standing in the highway, he was obliged to turn to the left, and, in doing so, drove in and upon the street car track. The precise position of this stationary automobile, whether at the curb or standing out in the traveled portion of the highway, was not disclosed. The lights upon the plaintiff's automobile were lit. Having gone upon the street car tracks, the plaintiff testified that he endeavored immediately thereafter to return to the paved portion of the street. While engaged in this endeavor, he saw, at a distance of from 5 1/2 to 3 blocks, the defendant's oncoming interurban street car, proceeding in a southerly direction, away from the city of Detroit, and toward the plaintiff's automobile. The slippery condition of the street railway roadbed, and the elevation of the street car tracks above that roadbed, prevented the plaintiff, according to his claim, from regaining the paved portion of the highway with his automobile. He says the effort to leave the street railway tracks and to return to the paved portion of the highway was continued.

‘Passengers in the oncoming street car testified that plaintiff's automobile was visible to them, from their position in front of the street car, for a distance of from 2 1/2 to 3 blocks. These passengers further said that the motorman of the street car at no time slackened its speed, after the automobile was within their view, that the motorman did not apply the brakes until at or subseqauent to the time when it collided with plaintiff's automobile, and that, during at least a portion of the time while the street car was approaching the plaintiff's automobile, the motorman was stooped over, apparently observing something within the vestibule of the street car. The collision seriously and permanently injured the plaintiff.

‘One of the claims urged by the defendant, in support of the contention of contributory negligence on the plaintiff's part, is that it was incumbent upon him to have left his automobile and to reach the pavement, thus gaining a place of safety. This is predicated upon his statement that his automobile was proceeding within the tracks at a rate of about 4 miles an housr.

‘This résumé of the plaintiff's case, viewed in its most favorable light, clearly creates, in my judgment, an issue for the decision of the jury. The plaintiff had the right to go upon the street car tracks. Not only had he this right, but it is a reasonable inference from the testimony to hold that entrance upon the tracks, if not physically necessary, was a prudent course of action in passing the stationary automobile. Having succeeded in passing this automobile, the plaintiff then undertook to return to the pavel portion of the street. He could not accomplish it.

‘Can it be said that, with the duty resting upon him to propel his automobile with reasonable regard to the protection of his two passengers, there was a legal duty for him to abandon his automobile as the street car approached and the peril of collision impended? To answer this question correctly, one must consider all the attending circumstances. Neither the physical situation nor the time in which to act accorded much opportunity for deliberation. It may well be said that the plaintiff momentarily hoped to rach a place of safety with his automobile. He had the safety of his two fellow passengers to consider. Whether it was reasonable to remain in the automobile or to abandon it seems to me very clearly to present a question of fact and not one of law. This must also be said with reference to the plaintiff's operation of his automobile. The facts which he claims impelled him to drive upon the street car track, the difficulties which he maintained prevented him from immediately reganining a position of safety in the highway, the speed at which he was propelling his automobile-these, and the other circumstances confronting him, came within the scope of the duty of the jury, and not of the court.

‘So, too, it may be said that the claims urged by the plaintiff as showing negligent operation of the street car make that question one for the jury. When it is remembered that the plaintiff's theory shows that the motorman could or should have seen the approaching automobile on the street car tracks a distance of from 2 1/2 to 3 blocks, that the automobile continued its progress within these tracks throughout that distance, that there was neither a lessening of speed nor an application of the brakes, nor any effort to bring the street car under such control as would avoid a collision, I think it clear that the issue thus raised comes within the province of the jury, and not of the court.

‘Accordingly the attitude taken at the close of the plaintiff's case is now reaffirmed, and the motion for a directed verdict in behalf of the defendant, notwithstanding the verdict which the jury rendered, is herewith denied.’

Viewed retrospectively, it will appear, probably, to plaintiff and to others, that it would have been better had he attempted to save himself by quitting the automobile before the collision. But that does not determine the question. Plaintiff viewed the situation prospectively, in a sudden emergency, in peril. He, his passengers, his car, the interurban, and those it carried, were in danger. To get his car from the track was desirable. That he continued too long perhaps in his effort to leave the track will not now be held to be contributory negligence as a matter of law. Krouse v. Southern Mich. R. Co., 215 Mich. 139, 183 N. W. 768, is not decisive of the question. The case falls within the rule of Fehnrich v. Railroad Co., 87 Mich. 612, 49 N. W. 891:

‘One put suddenly in peril is not required imperatively to do that which, after the peril is ended, it is seen he might have done and escaped. The law makes allowance for the fright and lack of coolness of judgment incident to such peril.’

See, also, Schnurr v. D. U. R., 222 Mich. 591, 193 N. W. 772;Gibbard v. Cursan, 225 Mich. 311, 196 N. W. 398;Weitzel v. D. U. R., 186 Mich. 7, 152 N. W. 931,153 N. W. 831;Leary v. Becker, 190 Mich. 697, 157 N. W. 359.

It is urged that the verdict is against the great weight of the evidence. The case is close, but after due consideration we are constrained to agree with Judge Murphy, who said, in disposing of the question:

‘The verdict of a jury is not to be lightly set aside. That the court, were he a juror, would have reached a different conclusion upon the controverted facts does not afford reason for vacating the verdict. This may only be done when it is clearly established that the jury's decision does not find reasonable support in the evidence, but is more likely to be attributed to causes outside the record, such as passion, prejudice, sympathy, or some extraneous influence.

‘The defendant presented witnesses, some apparently disinterested, whose version of the facts attending the cellision was wholly at variance with plaintiff's claim and irreconcilable with it. Thus the jury was confronted with two sets of witnesses, four of them maintaining consistently the plaintiff's theory, opposed by the group summoned in behalf of the defendant. There was no appeal to the jury by plaintiff's counsel which tended to arouse their antipathies or to play upon their sympathies, and the court expressly instructed the jury to discard sympathy as a factor in reaching their verdict, whatever it might be.

‘To hold in favor of the defendant's position would be...