Tunison v. Weadock

• Citation: 130 Mich. 141,89 N.W. 703
• Court: Supreme Court of Michigan
• Decision Date: 26 March 1902
• Parties: TUNISON v. WEADOCK et al.

89 N.W. 703

130 Mich. 141

TUNISON v. WEADOCK et al.

Supreme Court of Michigan

March 26, 1902

Error to circuit court, Bay county; Theodore F. Shepard, Judge.

Action by Petronilla Tunison against John C. Weadock and another receivers of the Bay Cities Consolidated Railway Company. From a judgment for plaintiff, defendants bring error. Affirmed.

Plaintiff and her husband, who was driving, were returning home from Bay City about half past 5 on the evening of December 15 1899, along Center avenue. They were driving on the south side of defendants' track. Just behind them was another horse and wagon, with two occupants,--a man and his wife named Robinson. A street car was coming from the rear. It passed Mr. Robinson's wagon, and some part of the car struck some part of the wagon in which plaintiff was riding overturned it, and injured her. In some manner the wagon and its occupants were carried or thrown to the north side of the track, so that when the car stopped the horse stood facing in the opposite direction. The night was clear and cold. As the witnesses stated: 'The cold made a squeaky noise. You could hear the wheels squeak.' The road was level between the car tracks and the gutter, a width of 12 to 15 feet. Three grounds of negligence are alleged: (1) That the car was going at an unlawful rate of speed, viz., more than 12 miles an hour, the limit allowed by the ordinance; (2) that the motorman failed to give any signal or warning of the approaching car by ringing the bell or otherwise; (3) that he neglected to see plaintiff, and take measures to prevent a collision with her buggy.

It seems essential to state somewhat fully the testimony upon which recovery is sought. Mrs. Robinson, who was riding in the wagon behind plaintiff, testified: 'We were going right along in the beaten track. We were close to plaintiff's carriage. We were more than a foot from the south rail of the street car track,--about a foot; not more than that. We were coming right behind Tunison's rig, and the car passed us as quick as lightning, and it came onto this head rig. It must have been in a little further than ours. It turned it bottom side up, and threw it further onto the track like, and caught onto the car, and the car was dragging it along.' Cross-examination: 'It was quite light, so you could see a car a great many blocks away, and a rig a great distance ahead of you. The road was free and clear. * * * I did not notice how close Tunison's rig was bing driven to the track. I was not thinking anything about the car coming, it caught us so quick. I knew the cars came there regularly. I was sitting on the side next to the car and thought I was entirely safe, and didn't pay any further attention to the car, nor how far from the track Tunison's rig was. In my judgment, they were almost, if not quite, as far from the track as our rig was. The car struck the side of the buggy,--the side that was to the car,--the whole side at once. It kind of struck it and threw it over in front of the car. It gave it a whirl around. * * * I did not know which part the car struck. I saw Mrs. Tunison on the south side of the track when the car catched her rig. It caught her rig, and kind of turned her around the opposite way, over onto the other side. The rig was not on the track. The car caught the side of the buggy. The horse got around in front of the car. It jumped over the track. The car must have shoved the buggy in front of it and along until it worked loose, and went over on the other side of the track. It kept going until it got loose from the car.' Redirect examination: 'It must have caught onto the side, and pulled the horse in front of the car. The horse kept on going after the buggy was struck.' Recross-examination: 'Q. How did the buggy get around on the other side? A. The car struck it, and it was right in front of the car, and of course the car kept shoving it off. Q. Then the whole buggy was in front of the car? A. Yes, sir.'

Mr. Robinson testified: 'We were going along the regular beaten road. In some places the road was beaten a little closer to the railroad, and in some places a little further. The first thing I knew about it, the car struck the rig, and the rig came right around in front of the car. The car was running on at the rate of about 18 or 20 miles an hour. * * * The north side of Tunison's rig was about two feet and a half from the south rail of the track, as near as I could tell, at the time of the collision, in the regular beaten road. We was about two and a half feet in the regular beaten road. In some places it goes closer in than at others. No bell was rung until the buggy was struck. Tunison's rig was nearer the car track than mine at the time of the accident. I was positive he was in the beaten portion of the track. The side of the car must have scraped his buggy, and the horse got frightened and started. It threw the buggy over to the south a little. The horse made a kind of jump, and jumped over towards the car track. The buggy followed the horse. After the car ran ahead, the horse became separated from the buggy, about forty or fifty feet from the first collision. The buggy then left the track.' On cross-examination he testified: 'There is a broad, open roadway between the south rail of the track and the gutter line of the street where the accident took place. One portion may be a little better beaten than the other portion, but it is all a broad, open, level roadway. You can drive on it all with convenience and safety. As near as I can tell, it is about 12 or 15 feet wide. * * * I thought I was far enough from the track to be entirely safe. I was right in the same beaten track he was. There was plenty of room to be six or eight feet away from the track, I suppose, if I had wanted to be; and Tunison was in the same beaten road. His rig was about a foot and a half from the track. I was observing at the time. I noticed because of the regular beaten track. There was nothing to hinder his driving along without reference to the regular beaten track. I thought he was safe. Just at the point where the accident happened Mr. Tunison's rig came in too close to the track,--came in suddenly. As near as I can tell you, he must have turned in suddenly with the bend of the road, or otherwise. He must have pulled in onto the track suddenly, almost instantaneously; and at the time he pulled in close to the track the car was coming right behind and right alongiside of me, and before he could get away the car struck him.'

Adelbert Curry testified that he was upon the sidewalk about 60 feet from the place of the collision. Saw the car coming for two blocks, and the rigs. That the car was running about 20 miles an hour. 'That Tunison's rig looked to me as though he was 3 or 4 feet off the track. When the car struck the rig, the latter was, I thought, three or four feet away from the track. When the car got opposite the rear of Tunison's rig, the latter was still on the south side of the track, and had not started to cross the track. I don't know how it came to get on the track, unless the way the road was beat, and the horse happened to take the road and to turn in towards the track. * * * About the time the car struck the rig, the horse gave a jump and dragged the buggy over onto the track. During the time I was attending to my own affairs the car and the rig came together. As quick as I heard the noise, I turned around.' Cross-examination: 'The horse must have turned in suddenly to get the wagon where it could be hit. It could not have been more than a second--a short bit--before the collision. At the time the horse turned in, the car was right behind him, I think, so there was not more than a second between his turning in on the track and the striking of the buggy by the car.' On redirect examination he testified: 'At the time the rig was first touched it must have been on the track, of course, ahead. I couldn't tell positively whether the rig was right ahead of the car or at one side.'

Mr Tunison, plaintiff's husband, testified: 'I must have been pretty close to the track. If I had not been on the track, the car could not have struck me. I was driving in the beaten track, which is sometimes close to the rail and sometimes goes off two or three feet.' On cross-examination he testified: 'I don't know how the accident happened, but I thought I was far enough away from the tracks to be safe. I know I did not turn onto the track. I was on the side at the time the street car struck the buggy. I was not turning.' The witness admitted that he gave the following testimony upon the former trial: 'Q. Hadn't you started across the track? A. I didn't start across the track. Q. Hadn't you got your horse across the track, and your wagon right on the track, before the car struck you? A. I didn't calculate to go across the track. The horse shoved. That is more than I know yet. Q. Hadn't the horse got across the track? Wasn't the fore wheel of your wagon across the first rail and on the second rail before the car ever struck you at all? A. I don't know anything about it at all. Q. You don't know anything about it at all? A. No. Q. Why don't you? A. I don't know anything about it. Q. Will you say that you had not? A. Yes, I said I did. Q. You don't mean that, do you? A. I say I don't know that. Q. You don't know, then, whether you had turned your horse to go across the track, or whether you were crossing the track, at the time the car struck you? A. No, I don't know about that.' He further testified: 'I could not say how close to the track the buggy was. Maybe a foot, maybe ten inches, maybe six inches. I can't tell how long the buggy had been so close to the track. I didn't pay any attention to it. There was plenty of room there to keep away from the track.' He...