Union Trust Co. v. Detroit, 38.

• Decision Date: 06 June 1927
• Docket Number: No. 38.,38.
• Citation: 214 N.W. 166,239 Mich. 97
• Parties: UNION TRUST CO. v. DETROIT, G. H. & M. RY.
• Court: Michigan Supreme Court

239 Mich. 97

214 N.W. 166

UNION TRUST CO.

v.DETROIT, G. H. & M. RY.

No. 38.

Supreme Court of Michigan.

June 6, 1927.

Error to Circuit Court, Wayne County; Willis B. Perkins, Judge.

Action by the Union Trust Company, administrator of the estate of Edward Kostowski, deceased, against the Detroit, Grand Haven & Milwaukee Railway. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before the Entire Bench.

Clarence P. Milligan, of Detroit, for appellant.

H. R. Martin, of Detroit (Leo J. Carrigan, of Detroit, of counsel), for appellee.

FELLOWS, J.

Holbrook avenue, in Detroit, runs east and west. It is crossed by the tracks of defendant company. The crossing is in an industrial section of the city, and there is much switching of freight cars, both day and night. About 9 o'clock in the evening of April 24, 1923, plaintiff's decedent received an injury at this crossing, while riding in an automobile driven by an acquaintance, from which injury he died about five hours later. The occupants of the automobile were familiar with the crossing. They were driving west. The accident was occasioned by the machine coming in contact with a box car, which had been shunted and was moving slowly to the south across the street.

Plaintiff produced one of the occupants of the automobile, who gave testimony, negative in character, that the gate on the north side of the street was not down against the west-bound traffic; but on cross-examination he explained this testimony by stating repeatedly that he did not remember that he saw it down. Witnesses are at times liable to become confused, and we have held on numerous occasions that, if their testimony on direct examination conflicts with that given on cross-examination, it is for the jury to decide when, if at all, they testified truthfully; but this rule does not apply where their former testimony is corrected and explained. West v. Detroit Terminal R. R., 229 Mich. 590, 201 N. W. 955;Kurtz v. Detroit, Toledo & Ironton R. R. Co. (Mich.) 213 N. W. 169.

All of the affirmative testimony in the case was that the north gate on the east side of the track was down against the west-bound traffic, and that there was a red lantern hanging on it, and the south gate on the west side of the tracks was down against the east-bound traffic, but that the other gates were not down. It is undisputed that there is an electric light in the immediate vicinity. The proof is undisputed that, when the automobile in which decedent was riding approached the crossing, there was at least one automobile waiting for the crossing to clear, and the overwhelming weight is that there were several. The testimony all shows that the box car, which was moving south, was in the street, and had reached the middle of the street when the automobile...