Vreeland v. Cincinnati, S. & M.R. Co.

• Decision Date: 30 June 1896
• Citation: 67 N.W. 905,109 Mich. 585
• Parties: VREELAND v. CINCINNATI, S. & M. R. CO.
• Court: Michigan Supreme Court

67 N.W. 905

109 Mich. 585

VREELAND v. CINCINNATI, S. & M. R. CO.

Supreme Court of Michigan

June 30, 1896

Error to circuit court, Bay county; Andrew C. Maxwell, Judge.

Action by Edwin C. Vreeland against the Cincinnati, Saginaw &amp Mackinaw Railroad Company. There was judgment for defendant and plaintiff brings error. Affirmed.

T. A. E. & J. C. Weadock (James E. Duffy, of counsel), for appellant.

T. F Shepard, for appellee.

MONTGOMERY J.

Plaintiff was a motorman in the employ of the Bay City Consolidated Railway Company. On April 6, 1893, plaintiff was engaged in running a car along Henry street, in West Bay City. Henry street, at the intersection of Ninth street, is also crossed by the track of the defendant company. When the car reached the crossing, it was struck by the engine of a passing train and thrown from the track. Plaintiff's shoulder blade was broken, and he suffered other injuries. He brings this action, claiming that the injury resulted wholly from negligence of defendant's servants, while he himself was in the exercise of due care. The alleged negligence of the defendant consisted in moving the train at a prohibited and high rate of speed, and testimony fairly tended to establish such negligence. There was perhaps a question, also, as to whether the bell was rung, although the testimony on this point was negative in its character. The circuit judge directed a verdict for the defendant, on the ground that the plaintiff was guilty of contributory negligence. This direction raises the sole question in the case which we need consider.

The street-railway track occupied the center of Henry street which runs in a north and south course. The track of the defendant road runs from the northwest, past Ninth street, in a general southeast course, curving somewhat to the west. At a point 10 feet from the center of the crossing of the two tracks, a train going northwest could be seen for a distance of 576 street; from a point 40 feet from the intersection, a train could be seen for a distance of 567 feet; and at a point 20 feet from the railroad track a train would be visible for a distance of 570 feet. Plaintiff testifies that he was going north with his car, and stopped on a switch at a point which would be about 260 feet south of the crossing for a south-bound train to pass him; that he then proceeded north till within about 35 or 40 feet of the crossing, when he brought his car to a stop, looked in all directions, saw no train, and then started ahead again. He further testifies: "I don't think I looked back up the track after I started ahead. Before I saw the train coming, I had got about 4, 5, or 6 feet from...