Richmond v. Chicago & W. M. R. Co.

• Decision Date: 28 July 1891
• Parties: RICHMOND v. CHICAGO & W. M. RY. CO.
• Court: Michigan Supreme Court

49 N.W. 621

87 Mich. 374

RICHMOND v. CHICAGO & W. M. RY. CO.

Supreme Court of Michigan

July 28, 1891

Error to superior court of Grand Rapids; EDWIN A. BURLINGAME Judge.

Action by Olney H. Richmond, administrator of Cady W. Sherwood deceased, against the Chicago & West Michigan Railway Company, to recover damages for the alleged negligent killing of plaintiff's decedent. Judgment for plaintiff. Defendant brings error. Affirmed.

Smith, Nims, Hoyt & Erwin, (M. J Smiley, of counsel,) for appellant.

J. M. Jamison, (Montgomery &amp Bundy, of counsel,) for appellee.

MORSE J.

The plaintiff's intestate in this case was the driver of a street-railway car in the city of Grand Rapids, and on the 23d day of April, 1889, while driving his car on West Fulton street, in said city, was killed by a collision with a train of the defendant company at the street crossing. This is an action for damages on account of his death. Plaintiff recovered judgment in the Kent circuit court in the sum of $5,313. At the close of plaintiff's proof, the defendant demurred to the evidence, and asked that a verdict be directed in its favor, on the ground that the plaintiff was not in the exercise of due care and caution when the accident occurred, and therefore guilty of contributory negligence. This motion was denied, and the defendant thereupon put in proofs. This action of the trial court and other errors are alleged as reasons for the reversal of this judgment. We will first examine the question whether the court erred in permitting the plaintiff to go to the jury as to his own negligence. This must be decided, as is admitted by defendant's counsel, upon the case as made by the testimony on the part of the plaintiff. This case is substantially as follows: Between the hours of 4 and 5 in the afternoon of April 23, 1889, Sherwood, with his car drawn by one horse, came down West Fulton street, approaching defendant's track. West Fulton street runs nearly east and west, and the railroad track crosses it nearly at right angles. Sherwood was going east. About 185 feet west of the defendant's track is another railroad crossing, that of the Lake Shore & Michigan Southern Railway. Sherwood was observed crossing this latter track on a walk. Beyond that to the east it is down grade, and he then started his horse on a trot, and continued until within 25 or 30 feet of defendant's crossing, when he "slowed down" to a walk. At this crossing, on the north side of West Fulton street and the west side of the railroad track, is a shanty used for a flagman who was stationed there to give warning of the approach of trains to the passers-by. To the north the view of the track was comparatively unobstructed, but upon the south side of the street, and to the west of the railroad track, was situated a lumber-yard, lumber office, coal-shed, lumber-sheds, and piles of lumber, and posts, more or less obstructing the view of cars coming from the south. On the day in question there was at least one car loaded with lumber upon a side track in the lumber-yard, which added to the obstructions. The witnesses who testified to seeing Sherwood approach the track did not all see him in the same place; some did not notice him until he was within 25 or 30 feet of the track, and others not until he was right upon it. Others saw him as he crossed the Lake Shore & Michigan Southern track, and until he was injured, except such times as they were looking at the cars. They do not agree as to what he was doing, except that he was on a walk within 25 or 30 feet of the track, and had hold of the lines, and some say one hand on the brake, and was standing in his usual place upon the front platform of his car. Some did not notice where he was looking. One witness says he looked straight ahead all the while, as if he was looking at the horse; others, that he looked to the north all the time, and towards the watchman's shanty. One witness, and the only one who so testifies, says that he saw Sherwood's head go both ways. He first observed him 40 or 50 feet back of the track. Just as Sherwood got to the track a train of nine cars, detached from the engine, came down the track from the south. "Sherwood then stopped, put his hand on the brake, tried to 'brake up,' but could not. The horse was on the track, his forward feet across it. The horse gave a jerk, and pulled Sherwood over the dash-board, and under the car." Sherwood died of the injuries there received. These cars were running, as testified by plaintiff's witnesses, at the rate of from 8 to 12 miles an hour, the majority estimating the speed at from 8 to 10 miles an hour. There was no warning of the approach of these cars, except the noise they made in running. There was no lookout on the forward car. There was a man standing on the third car from the front of the train, but he was looking north-east, and giving no attention to the crossing. The flagman was not at his usual post of duty, and no signal or warning was given by him until the horse was on the track. He then ran out of the shanty or flag-house in his shirt sleeves, and bare-headed, but too late to warn Sherwood of his danger. The plaintiff's claim was that the defendant was negligent in the following particulars: (1) That the cars were run at too high rate of speed in violation of the city ordinance,-a speed which also, in view of the nature, locality, and surroundings, was, as a matter of fact, dangerous and negligent; (2) that no proper signals were given to warn those approaching the crossing, and particularly the deceased of the approach of the train; (3) the flagman was absent from his post of duty, which was outside of the flag-house, with his flag to give warning, (but was present in the flag-house in view of the deceased,) and failed to give any warning of the approach of the train.

The negligence of the defendant is apparent from the evidence on the part of the plaintiff, and need not be discussed further. It is contended by the defendant's counsel that the plaintiff's intestate was guilty of negligence as a matter of law; that there were places on the line of Sherwood's course before he reached the track where he could have seen these cars approaching, had he looked to the south; that at a point 40 feet west of the railway crossing the cars could have been seen before the lumber office obstructed the view; that a hundred feet of the track was visible by looking through between the office and the lumber-piles; also that, at a point 25 feet from the crossing, a car could be seen 74 feet south of the crossing; and from a point 16 feet west of the crossing a car could be seen approaching from the south 167 feet south of the crossing, the street-car track being in the center of the highway. We do not think from the testimony produced by the plaintiff that Sherwood could have seen the cars approaching from the south after he left the crossing of the Lake Shore & Michigan Southern Railway until he came within about 20 feet of the crossing. If he had looked, then he would have undoubtedly seen these cars in time to have stopped and avoided a collision. And it is pretty apparent-almost absolutely certain, from the plaintiff's own showing-that he did not look south within said 20 feet, until his horse was upon the track. Whether he was negligent depends in a great measure upon whether or not he had a right to rely, under the circumstances, upon the absence of the flagman, and the lack of any signal of danger from him.

It is claimed by defendant's counsel that the obstruction of the view to the south, and the absence of the watchman from his post, called upon Sherwood to have stopped, and looked and listened, before he attempted to pass this crossing. This claim would be correct if, at this street crossing, no flagman had been stationed to give warning. But the testimony shows that a flagman had been kept at this point for three or four years, whose duty it was to signal by a flag in the street the approach of trains. It is not the law of this state that, under all circumstances, it is absolutely necessary for a person approaching a railroad crossing to look both ways, and to listen for approaching trains. It is generally required, but it is not a rule of universal application. Every case must depend upon its own circumstances, and it would be unreasonable to apply such rule, under all circumstances, without regard to the condition of things at the time. Cooper v. Railway Co., 66 Mich. 266, 33 N.W. 306. Nor is a traveler compelled, under all circumstances, to stop before a crossing, if his view is obstructed from one way. He is only required to take such precaution as an ordinarily prudent man would under like circumstances, and whether or not he did use such care is generally a question for the jury. See Guggenheim v. Railway Co., 66 Mich. 157, 158, 33 N.W. 161, and cases cited. Plaintiff's counsel contend that, it appearing that the defendant had stationed a flagman at this crossing, whose duty it was to warn parties about to cross of approaching trains, it was for the jury to say whether the deceased, in keeping his eyes directed to the flagman for the very purpose of observing a signal at the earliest moment that it could be given, was not exercising due care. They cite the following cases in support of this contention: French v. Railway Co., 116 Mass. 537; Sweeny v. Railway Co., 10 Allen, 377; Railway Co. v. Hutchinson, (Ill.) 11 N.E. 856; Pennsylvania Co. v. Stegmeier, (Ind.) 20 N.E. 843; Glushing v. Sharp, 96 N.Y. 676; Railroad Co. v Schneider, (Ohio,) 17 N.E. 321; State v. Railroad Co., (Me.) 15 A. 39; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 27 F. 159; Tyler v. Railway Co., 137 Mass. 238; Railway Co. v. Yundt, 78 Ind. 373. In 116 Mass. the submitting of the question of...