Stahl v. Lake Shore & M.S.R. Co.

• Decision Date: 07 June 1898
• Parties: STAHL v. LAKE SHORE & M. S. RY. CO.
• Court: Michigan Supreme Court

75 N.W. 629

117 Mich. 273

STAHL v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

June 7, 1898

Error to circuit court, Monroe county; Edward D. Kinne, Judge.

Action by Frank Stahl against the Lake Shore & Michigan Southern Railway Company. Verdict and judgment for plaintiff, and defendant brings error. Reversed.

C. E Weaver (Geo. C. Greene and O. G. Getzen-Danner, of counsel) for appellant.

Charles H. Golden and Edward R. Gilday, for appellee.

MONTGOMERY J.

Plaintiff recovered a verdict in an action for damages sustained in a collision. The collision occurred at the crossing of the defendant's road at Third street, in the city of Monroe. Plaintiff was engaged in hauling gravel; had drawn one load, and unloaded it, and was going back after another. He had a team that weighed about 2,700 pounds, and a new, heavy wagon. The train with which the collision occurred was a passenger train, and was substantially on time. The plaintiff testified that, when he looked at his watch, he thought the train must have gone west. Hubbel street is one block from the railroad crossing, and plaintiff testified that, before reaching Hubbel street, he brought his team down to a walk; that he looked out for a train, but did not see any. There were some obstructions in the way of a clear view but at a point 60 feet from the crossing he could have seen a distance of 275 feet, and at a point 46 feet from the crossing he had an unobstructed view for 672 feet. The plaintiff testified that, when he was 55 feet from the track the team became frightened, and that at this point he saw the engine and train coming that, as soon as he saw it, he pulled back on the horses, and hallooed, "Whoa;" that he braced his feet against the end boards, but did not get a new hold of his reins; that both horses jumped on the track at the same time, and were running away before they had got over the track. He testified, further, that, in approaching the track, the team just went as they were a mind to,-took their own gait; that the way that he had the lines did not affect their speed one way or the other; just held a common line on them; that, if he wanted to stop them, he would have had a stronger hold than he did have; that he did not have a chance to do this; that he was leaning back, and pulling. He further testified on cross-examination that there would have been nothing to prevent his turning around when he got up as far as the sign, "Railroad Crossing." There was some testimony tending to show that the train was coming at a rate of speed somewhat in excess of that provided by an ordinance of the city, and also some testimony to show that the signals were not given. Assuming the defendant to have been negligent in the particulars named, this negligence did not relieve the plaintiff from the exercise of due care in approaching the crossing. He was still bound to use his senses to avoid a collision with the train. The plaintiff's own testimony shows that, at a point 55 feet from the crossing, he discovered the train approaching, and he had a gentle team. It is not shown, nor is it to be assumed, that the plaintiff would have stopped short of this point if he had known of the approaching train earlier. On the contrary, it is common experience that a driver...