Schnurr v. Detroit United Ry.

• Decision Date: 04 June 1923
• Docket Number: No. 31.,31.
• Citation: 222 Mich. 591,193 N.W. 772
• Parties: SCHNURR v. DETROIT UNITED RY.
• Court: Michigan Supreme Court

222 Mich. 591

193 N.W. 772

SCHNURR

v.DETROIT UNITED RY.

No. 31.

Supreme Court of Michigan.

March 22, 1923.

Rehearing Denied June 4, 1923.

Error to Circuit Court, Wayne County; Clyde I. Webster, Judge.

Action by Febronia Schnurr against the Detroit United Railway, Judgement for plaintiff, and defendant brings error. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. William G. Fitzpatrick, of Detroit (Frederic T. Harward, of Detroit, of counsel), for appellant.

Clarence P. Milligan, of Detroit, for appellee.

SHARPE, J.

Plaintiff alighted from a north-bound passenger car on Hamilton avenue in the city of Detroit at the usual stopping place just before it reached Atkinson avenue. Her intention was to cross to the west side of the street. She was struck and severely injured by a car on the west track, going southward. She had verdict and judgment. We consider the assignments of error discussed by counsel.

1. Plaintiff's Contributory Negligence.

In determining this question, the evidence must be considered in the light most favorable to plaintiff. She testified:

That a car was following quite closely from the south; that when she alighted she waited for the car on which she had ridden to pull out; that when it had gone about 75 feet she looked to the motorman on the approaching car, then about 25 feet distant and moving slowly; that he motioned for her to cross; that she then crossed the track on the east side of the street, and when between the two tracks she ‘looked north and saw a car coming down the line at a terrific speed. It was between 100 and 125 feet away when I first saw it. I though sure just as soon as I would stop there and they would see me that they-and put up my hands, to see that I was in danger there, both coming with that speed, I thought sure they would stop, but they didn't. * * * I hesitated for about two seconds, thinking that they would stop. I put up my hand. I did not say ‘stop’ or anything, I just got excited, and I thought they would stop by my signal. I was facing west at that time. The motorman did not slack up at all; he did not slow down at all. Had he slowed down, I would have made it with comfort. * * * I turned right back facing the east. * * * I thought I could make it the other way, but I could not. * * * The car, the north-bound car, was still just moving, I should judge-I should think it was just about coming to a stop there.'

On redirect examination she was asked why she ‘did not go across in front of this car that was coming down.’ She answered:

‘A. Because it was coming at such a terrible speed, that I was afraid-I was not afraid at the time of crossing, only I thought I would wait and give him a chance to slow down a little bit, for I knew he had time to slow down.

‘Q. Did you expect that he would slow down as you stood there? A. Yes, sir; I did. That is why I put my hand out, thinking he would.

‘Q. What was your best judgment at that time as to what to do? A. To stop and wait for him to slow down.’

She was between the tracks when the south-bound car struck her.

If the plaintiff waited until the car from which she had alighted had gone on a distance of 75 feet or more and then treated the apparent signal of the motorman on the car approaching from the south as an indication that she might safely cross, it cannot be said as a matter of law that she was guilty of negligence in proceeding to do so. She then found herself on the narrow strip between the two tracks, a place where a man might perhaps stand in safety, but one in which we think no prudent person would willingly do so. Cars were approaching from both directions. Did she act with prudence? It is urged that she could have passed in front of the car approaching from the north or returned to the place from which she started, with safety. The following from Fehnrich v. Railroad Co., 87 Mich. 606, 612, 49 N. W. 890, 891, is peculiarly applicable to her situation:

‘One put suddenly in peril is not required imperatively to do that which, after the peril is ended, it is seen he might have done and escaped. The law makes allowance for the fright and lack of coolness of judgment incident to such peril.’

As was said in Mercer v. Cincinnati, etc., R. Co., 151 Mich. 566, 568, 115 N. W. 733, 734, the plaintiff was not ‘negligent if she chose the alternative which proved to be the more dangerous.’ See, also, Weitzel v. Det. United Ry., 186 Mich. 7, 152 N. W. 931,153 N. W. 831; 29 Cyc. 521, 641, and cases cited. There was no error in submitting this question to the jury.

2. Defendant's Negligence.

Street cars have no monopoly of the city streets. Pedestrians are still entitled to use them. The speed at which such cars are permitted to run, their weight, and the fact that they cannot be deflected from their course, render them peculiarly dangerous, and pedestrians are chargeable with knowledge that they are so. The conduct of the motorman, when charged with negligence in the operation of his car, must also be viewed with such facts in mind. When meeting a car which had just started up after stopping at an intersecting street corner, and from which passengers had probably alighted, and meeting another close at hand, a motorman should be watchful and vigilant. The situation as he can observe it must determine the extent to which he should have his car under control. He had the means at hand to do so. Plaintiff's witnesses testified that the car went more than 150 feet after striking her before it was stopped. The motorman should have seen her as soon as she stepped on the space between the two tracks. He should also have seen the car approaching from the south, then almost beside her. Exercising reasonable judgment, he could but have determined that she was in a position of peril. Did he then do what an ordinarily prudent person in charge of such a car, familiar with the means at hand for its control, would reasonably do? These questions were submitted to the jury under instructions of which no complaint is made. We think the court committed no error in doing so. See Prince v. Detroit United Railway, 192 Mich. 194, 158 N. W. 861, and cases cited.

3. Other Errors.

In concluding his oral argument, defendant's counsel stated that a new trial was not asked for. This renders it unnecessary for us to consider the errors assigned on the instruction as to after-discovered negligence, or...