Rouse v. Detroit Elec. Ry.

• Decision Date: 16 July 1904
• Citation: 135 Mich. 545,100 N.W. 404
• Court: Michigan Supreme Court
• Parties: ROUSE v. DETROIT ELECTRIC RY.

100 N.W. 404

135 Mich. 545

ROUSE v. DETROIT ELECTRIC RY.

Supreme Court of Michigan

July 16, 1904

On rehearing. Denied.

For former opinion, see 98 N.W. 258.

PER CURIAM.

We decided this case on the 2d of last February. The decision will be found reported 98 N.W. 258. Defendant asks for a rehearing on the ground that we erred in reversing the case because the trial judge charged the jury: 'It is a law in Michigan that railway tracks are places of danger; that one who goes upon them without looking and listening for cars does so at his peril; and if he enters upon a place of danger carelessly and negligently, then he cannot recover any damages which result from such action.' By this we simply intended to decide that, as applied to this case, that charge was erroneous. Plaintiff's intestate was killed because defendant's street car collided with and overthrew the vehicle in which he was riding. Both the vehicle and the car were going in the same direction. Plaintiff's intestate was driving, not on defendant's track, but in the beaten path in the highway alongside of said track. This beaten path, according to plaintiff's testimony, 'in some places it went right up to the street car track and some places a little farther away. But at this particular place [the place of injury] it was just twelve inches from the railway track to the wagon track.' The effect of the charge of the trial court now under consideration was to inform the jury that, if plaintiff's intestate, in traveling this deaten track, failed to look and listen before he brought his vehicle within the path of the approaching car, he did so at his peril. By our former opinion we intended to assert, and do now assert, that this charge was erroneous, and prejudicial to plaintiff. See Tunison v. Weadock, 130 Mich. 141, 89 N.W. 703.

The jury, in answer to a special question, found that plaintiff's intestate did not keep a careful lookout for the car. It is contended that we are bound to conclude from this answer that plaintiff's intestate was guilty of contributory negligence. The answer to this contention is that it is to be presumed that the jury tested the conduct of plaintiff's intestate by the erroneous standard of care which the court in his charge told them he must exercise.

Petition for a rehearing is denied.