Rascher v. East Detroit & G.P. Ry. Co.
| Decision Date | 04 March 1892 |
| Citation | 51 N.W. 463,90 Mich. 413 |
| Parties | RASCHER v. EAST DETROIT & G. P. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.
This was an action by Clara L. Rascher against the East Detroit & Grosse Pointe Railway Company to recover for negligent injury. From a judgment taking the case from the jury plaintiff appeals. Reversed.
A. H. Wilkinson, for appellant.
Wm. H. Wells, for appellee.
Action for negligent injury. The case was taken from the jury by the circuit judge on the ground of the contributory negligence of the plaintiff. The evidence shows that the defendant operates an electric street-car line on Mack street, in the city of Detroit; that its track is laid in the center of the street and on the crown of the road-bed, at the place where the accident occurred. The street is bad for driving, there being deep ditches on each side of the street; and the best place to drive a team is on the railway track. Plaintiff resided on this street, and on November 27, 1889, was being driven home by her husband from the place where he worked. The vehicle was a top-buggy, drawn by one horse. At this time the electric railway had been in operation four or five months. Plaintiff and her husband came onto Mack street at its intersection with Gratiot avenue. When they reached Mack street, the husband testified that he looked to see if a car was coming, and did not see any. He could have seen an approaching car with head-light a mile and a half or two miles from where he looked. They drove on the track all the way. The husband saw no light or car until his wife exclaimed, "Oh, Herman, there is the car!" The horse was then on his hind feet, and he undertook to "lash him" off the track. The horse and front wheels got off, but the car struck the left hind wheel of his buggy, throwing the plaintiff out and injuring her. There was no head-light on the car, and it was dark. The car was not lighted at all, either inside or out. It was running at the rate of 15 or 20 miles an hour. Before this time the cars upon that line were in the custom of using head-lights when running after dark. The plaintiff herself testified that when they got to Mack street she looked up the street, and could see no car or light. After she started she did not look particularly for a car, as she thought, if there was one coming, they could see the light in time to avoid it. The first she knew of the approach of the car she saw a little blue flame on the trolley-wire; then she saw the glass glitter in the car-window, and called to her husband, who at once attempted to get out of the way.
The plaintiff was not negligent in driving upon this railway track. She had the same right to travel upon it as the railway company, save that it was her duty, when she met a car, to get off, and give the car precedence. But she was not a trespasser upon the track in any sense. The right of the railway in the street is only an easement to use the highway in common with the public. It has no...
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