Quirk v. Rapid Ry.
| Decision Date | 03 June 1902 |
| Court | Michigan Supreme Court |
| Parties | QUIRK v. RAPID RY. |
Error to circuit court, Wayne county; Robert E. Frazer, Judge.
Action by John Quirk, by his next friend, against the Rapid Railway. From a judgment in favor of defendant, plaintiff appeals. Reversed.
Seth E Engle, for appellant.
Brennan Donnelly & Van De Mark and Henry L. Lyster, for appellee.
The plaintiff, who, at the time of the injuries received, was between 14 and 15 years of age, was run into by one of defendant's gravel trains, which consisted of three short cars filled with crushed stone, which were being pushed ahead of the motor. According to the plaintiff's testimony, he passed out of his own yard about 6 o'clock in the evening, drawing his young brother in an improvised cart, by means of a rope which was thrown over plaintiff's shoulders and brought under his arms. He testifies that he proceeded in the direction of Mt. Clemens, and when 195 feet, or thereabouts, east of the point at which he entered the highway, he saw the defendant's regular train going towards Mt. Clemens; that he followed along a further distance of about 190 feet, reaching a place where there was a plank walk extending across the track, and entered upon the space occupied by the track of defendant, and pursued his way to the east. He testifies that after the car passed him he did not again look in the direction of Detroit for approaching cars, but thought that no other car would be following closely upon the regular passenger car. After entering upon the portion of the highway traversed by defendant's tracks, he followed the track, according to his testimony, 204 feet, when he was struck by the defendant's train. The motoneer was called as a witness for the defendant, and testified that he saw the two boys when they were in the middle of the road, and that when he was within a couple of hundred feet of them they turned on the track with their cart; that he at once sounded the gong and tried to attact their attention, and stop his train, as soon as they were on the track; that when within 20 feet of them they happened to hear the gong, looked up, and tried to jump off the track; that they were both clear of the rail, but the cart caught on the outside rail as they tried to get off, but the train struck the cart and cut plaintiff's arm off. In another portion of his testimony the witness states that the boys got on the track in front of Mr. Reuhle's place, which, as would appear from the map introduced, is a point nearer Detroit than that given by the plaintiff himself, so that, if the plaintiff entered upon the track at Reuhle's, he must have traveled on the track a greater distance than 204 feet. There was testimony tending to show that the gong was not sounded, and also tending to show that the carran a considerable distance after the plaintiff was struck, indicating that it had a considerable speed, and had not been brought under control. The defendant's testimony disputed both these claims. The circuit judge expressed the opinion that there was sufficient evidence to justify submitting the case to the jury upon the question of defendant's negligence, but he withdrew the case from the jury upon the ground that the plaintiff was conclusively shown to be guilty of contributory negligence. If the defendant's testimony as to the facts were to be credited and accepted as true, the plaintiff was undoubtedly guilty of negligence contributing to the injury. But if, on the other hand, the plaintiff, after entering upon the track, was pursuing his way on this public highway, in full view of the motoneer, for a distance of 204 feet, we are not prepared to hold, as a matter of law, that he was guilty of contributory negligence. This is not a steam railroad. The plaintiff was in no sense a trespasser. This railroad company occupies a portion of the public highway. Travelers have the right to continue to travel upon this highway, and are not to be treated as trespassers; and if, after discovering that the plaintiff was upon the track, the motoneer failed to take proper precautions to prevent injury to him, a precedent negligence of the plaintiff, if there were any, constitutes no defense. Richter v. Harper, 95 Mich. 225, 54 N.W. 768. His presence there would furnish an opportunity for injury, but would not be, in any legal sense, a contributing cause to it. It is immaterial whether he had been pursuing his course on this highway, and within the lines of the railway tracks, for 204 feet or for half a mile, as it affects the negligence of defendant in running him down, provided he was upon the track a sufficient length of time, in full view of the motoneer, so that, by a proper control of his train, he could have prevented the injury, or have given plaintiff notice in time to avoid the injury. The defendant relies, in support of the ruling of the court below, upon the cases of Fritz v. Railway Co., 105 Mich. 90, 62 N.W. 1007; Doherty v. Railway Co., 118 Mich. 209, 76 N.W. 377, 80 N.W. 36; and Borschall v. Railway, 115 Mich. 473, 73 N.W. 551. In none of these cases were the facts analogous to the case under consideration. These were cases in which it appeared that the attempt to cross the track was sudden, and unexpected to the motoneer. The element of a traveler lawfully pursuing his way ahead of the car, and in the same direction as the car, was not present. The question in this case was recently considered by this court, and ruled adversely to the contention of the defendant's counsel, in Tunison v. Weadock, 89 N.W. 703, in which case attention was directed to the fact that Fritz v. Railway Co. had been previously distinguished by this court, in an opinion by Mr. Justice Long, in Rouse v. Railway, 87 N.W. 68. See, also, as further supporting the views here expressed: Little v. Railway Co., 78 Mich. 205, 44 N.W. 137; Rascher v. Railway Co., 90 Mich. 413, 51 N.W. 463, 30 Am. St. Rep. 447; Laethem v. Railway Co., 100 Mich. 297, 58 N.W. 996; Bush v. Railway Co., 113 Mich. 513, 71 N.W. 851; Blakeslee v. Railway Co., 112 Mich. 63, 70 N.W. 408; McClellan v. Railway Co., 105 Mich. 101, 62 N.W. 1025.
The judgment will be reversed, and a new trial ordered.
LONG, J., did not sit. MOORE, J., concurred with MONTGOMERY, J.
I think that the question of negligence and contributory negligence should have been submitted to the jury and therefore concur in the reversal of the judgment.
I think the court properly...
To continue reading
Request your trial