Rouse v. Detroit Elec. Ry.

• Decision Date: 19 July 1901
• Citation: 87 N.W. 68,128 Mich. 149
• Court: Michigan Supreme Court
• Parties: ROUSE v. DETROIT ELECTRIC RY.

87 N.W. 68

128 Mich. 149

ROUSE v. DETROIT ELECTRIC RY.

Supreme Court of Michigan

July 19, 1901

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by Sarah Rouse, administratrix of the estate of Henry Rouse deceased, against the Detroit Electric Railway. From a judgment in favor of plaintiff, defendant appeals Reversed.

T. T. Leete, Jr., for appellant.

Howard D. Bloomer (Alfred Lucking, of counsel), for appellee.

LONG J.

This action is brought to recover damages for the death of Henry Rouse, occasioned by the claimed negligence of the defendant. It appears that Rouse, plaintiff's intestate, a teamster was riding with his son-in-law, one Garlick, also a teamster in an orinary dirt wagon, along Oakland avenue, in the city of Detroit, on the night of September 26, 1898. The men had been some eight miles out in the county, and about 8 o'clock that night, in returning, they drove along Oakland avenue. The defendant operates a double street railway on this avenue. Its cars in going north pass over the east track, and in returning southward in the city pass over the west track. Rouse and Garlick entered upon Oakland avenue north of the north terminus of these car tracks, the tracks there forming a 'Y,' so that the cars may turn and proceed back to the city. After the men had driven over the 'Y,' going south, they saw the car pass them, going north on the east track. It appears that they knew that the car must turn and follow them south on the west track. They were going south between the west track and a ditch on the west side of the avenue, the street being an unpaved one. The distance between the car tracks and the ditch is in some dispute; the plaintiff's witnesses putting it between 9 and 10 feet, and the defendant's between 10 and 11.

The parties could see that there was a ditch along the side of the wagon track, but Mr. Garlick claims they could not tell in the dark how deep or dangerous it was, or how close to their wheels; and there was some evidence tending to show that at places the roadway was so narrow that teams were driven into the ditch in the daytime when cars were passing. The ditch was from 18 inches to 2 feet deep. They had never passed over this road before, and the plaintiff's claim is that they were driving carefully and slowly, that the team was on a walk in the beath track made by the regular travel, and that Garlick, who was driving, kept the reins steadily in his hands, and let the horses go along the regular way. It appears that the footboard of the car lapped over the roadway outside the rail 2 feet, leaving only 8 feet or less between the car and the ditch; that the wagon, from hub to hub, lacked 1 inch from 6 feet in width. It is claimed by the plaintiff that the deceased and his companion expected that the car would go back, and so kept looking around; that Rouse looked around two or three times; that the last time he looked he discovered the car not far behind them, coming rapidly, that he called to Garlick to gee out, which Garlick says he did as soon as possible, but that the wagon was struck just north of the alley north of Westminster avenue and overturned, injuring Mr. Rouse, and from which injuries he shortly after died. It is also the claim of plaintiff that the car was running at a rate of speed of more than 25 miles an hour; that when the wagon was struck it was with such force that a new white-oak reach, 5 inches wide by 2 1/4 inches think, was snapped like a pipestem; that the motorman applied the brakes instantly, and yet the car ran 305 feet further before it could be stopped; that when the wagon was struck the horses galloped away; that the car shot past the horses, and, although they were on a gallop or run, they crossed the track behind the car which passed them 140 feet south of the place of the accident. It is also the claim of the plaintiff that, as soon as the parties discovered the car approaching, Garlick hastened to drive to the edge of the ditch, out of the way of the car, but it was coming with such speed that it was too late to escape it. It was the claim of defendant that just before the car struck the wagon the horses turned towards the track, bringing the wagon so near the track that the car ran against it. The motorman testified on his cross-examination that: 'The first I saw of the wagon, it was about five feet ahead of my car;' and further that: 'I could not swear that I noticed in that five feet that they turned nearer to the track, and that I would have cleared them if they had been as far away as they had been five feet before.' The court submitted the question to the jury under the claims of the respective parties. The jury returned a verdict in favor of plaintiff for $5,550.

1. Defendant's counsel contends that the negligence of Mr Garlick, the driver, contributed to the accident, and the plaintiff was not entitled to recover; that the admission of Garlick that he did not see the car until it struck him is conclusive evidence of contributory negligence. We think this contention cannot be sustained. According to Garlick's testimony, they were on the lookout for the return to the car. Sometimes Rouse looked backward; and at other times, Garlick. He testified that the car was running at a very high rate of speed. Counsel for defendant contends that the case a governed by Fritz v. Railway Co., 105 Mich. 53, 62 N.W. 1007; Blakeslee v. Railway Co., 105 Mich. 468, 63 N.W. 401; Doherty v. Railway Co., 118 Mich. 209, 76 N.W. 377, 80 N.W. 36. We think these cases are not controlling of the present. The Fritz Case was put expressly on the ground that the driver of the market wagon turned suddenly and unexpectedly in front of the car. It was...