Philip v. Heraty

• Decision Date: 12 January 1904
• Citation: 135 Mich. 446,97 N.W. 963
• Court: Michigan Supreme Court
• Parties: PHILIP v. HERATY et al.

97 N.W. 963

135 Mich. 446

PHILIP v. HERATY et al.

Supreme Court of Michigan

January 12, 1904

Error to Circuit Court, Bay County; Theodore F. Shepard, Judge.

Action by Nellie M. Philip, as administratrix of the estate of George Philip, deceased, against Michael P. Heraty and others. From a judgment in favor of plaintiff, defendants bring error. Reversed.

T. A. E. & J. C. Weadock, for appellants.

Frank L. Edinborought (De Vere Hall, of counsel), for appellee.

HOOKER C.J.

The defendants were receivers of a street railway in Bay City and were conducting its business at the time of the occurrence of the accident which is the subject of this action. The plaintiff is the adminstratrix of one George Philip, deceased, and is alleged to be his widow. At the time of the accident George Philip was yardmaster for the Grand Trunk Railway, and was in charge of a train of 13 freight cars which was being backed across the street railway tracks which were laid along Williams street. The deceased was upon the first car, with his lantern in hand, as the train was backed southward towards Williams street, which car came into collision with a street car upon defendant's road whereby he was thrown from the car and run over and killed by his own train. At this point the street railway was crossed by two tracks belonging to the Grand Trunk Railway Company and one owned by the Michigan Central Railroad Company, and there is testimony in the record tending to show that the middle track, upon which deceased's train approached the crossing, was slightly lower than the others--perhaps two inches or thereabouts. The train was moving at the rate of four or five miles an hour, and the deceased was acting as lookout upon the end of the train. The street car was in charge of a conductor, and there was some testimony to the effect that he was upon the front platform of the car, with the motorman, when the collision occurred. Other testimony indicated that he was in the car, going to the rear platform, at that time. There is testimony that the street car did not come to a full stop before an attempt was made to cross the track. There is a dispute about this, however, and there is little doubt that its speed was checked. There is no claim that either the conductor or the motorman left the car and went to the track to see if it would be safe to attempt to cross. And it is claimed by the defense that the testimony shows that it would have been unsafe for the motorman to have attempted to cross while the conductor was absent, for the reason that, owing to the nature of the particular crossing, the trolley was liable to slip off from the wire, and in such case the car would have been unable to proceed until the conductor should have returned and replaced it. It was also claimed that it would have been useless for the motorman to leave his car to see if the track was clear, for, had he done so, and found the track apparently clear, by the time he could have returned to the car, it would have been as dangerous to cross as in the first instance. The evidence showed that a flagman was kept at this crossing during the daytime by the Grand Trunk Company, but it was after his hours, and he was absent. It was also shown that the Michigan Central Company was in the habit of flagging its trains across this crossing, but that the Grand Trunk Company did not do so. The steam railroads were laid along Midland street, and at the corner of Williams and Midland there was a building that obstructed the view of the railroads to the west, and sometimes a car was left on the siding--i. e., the first track--still further obstructing the view. There was a dispute as to whether such a car was there on this occasion. There was some dispute as to how far the motorman could see up the track, which depended somewhat on how near the track he ran his car before putting on the current to cross. After getting upon the track the motorman discovered the train, and reversed his motor, but did not succeed in quite clearing the car.

Counsel for defendants' most comprehensive point is that the court should have directed a verdict for the defendants for the reasons, first, that there was no testimony that there was any negligence in the management of the street car second, that the undisputed testimony shows that the Grand Trunk Railway Company was negligent in not flagging its train across the street, by stopping it, and sending a man ahead of it, to see that the crossing was safe. We cannot say that there was no negligence on the part of the street car men. Aside from the statute (Comp. Laws, � 6464) which requires street railway companies 'to required their drivers to bring their cars to a full stop, before going upon the crossing of the tracks of a steam...