Wilson v. Detroit United Ry.

• Citation: 167 Mich. 107,132 N.W. 762
• Parties: WILSON v. DETROIT UNITED RY.
• Decision Date: 02 October 1911
• Court: Supreme Court of Michigan

167 Mich. 107
132 N.W. 762

WILSON
v.
DETROIT UNITED RY.

Supreme Court of Michigan.

Oct. 2, 1911.

Error to Circuit Court, Wayne County; Alfred J. Murphy, Judge.

Action by Edward Wilson against the Detroit United Railway. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Argued before OSTRANDER, C. J., and BIRD, BROOKE, BLAIR, and STONE, JJ.

[132 N.W. 762]

James H. Pound, for appellant.

Brennan, Donnelly & Van De Mark (W. G. Fitzpatrick, of counsel), for appellee.

STONE, J.

This is an action on the case for damages which the plaintiff sustained by being injured, on September 7, 1907, at the crossing of the Trumbull avenue street car line with the Grand River avenue line of defendant's road, in the city of Detroit.

It is the claim of the plaintiff that he was, at the time of the injury, and had been for a number of years, totally blind. At the time of the trial, he testified that he was 47 years of age; that he was a piano tuner, and had carried on that business for 18 years in the city of Detroit. On the evening of the day in question, and about 5:45 p. m., the plaintiff testified that he took the Trumbull avenue car at the corner of Mt. Elliott and Congress streets, in the city of Detroit, to go to the northwestern part of the city; that he paid his fare to the conductor; and that at the time of so doing he stated that he wanted a Grand River avenue transfer. We append here a blue print of the location where the plaintiff was injured, which is found in defendant's brief, and the accuracy of which is not questioned.

A transfer in the usual form was furnished to the plaintiff; and after arriving at the place of transfer, and at the time of alighting from the Trumbull avenue car, the plaintiff asked the conductor if the way was clear for his crossing the track. The conductor said, ‘Yes; everything is all right,’ and to go ahead. Plaintiff desired to take

[132 N.W. 763]

the Grand River avenue car going west. The place where he alighted was a paved street, much traveled and frequented at that hour of the day. It was necessary for him to go in a northerly direction some 50 or 60 feet across Grand River avenue toward the Grand River avenue track, and as he was about to cross the track he was struck by an east-bound car upon said last-named track. He sustained an injury, breaking two bones of his left leg above the ankle. He testified that he heard no gong sounded, and that he thought everything was clear.

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The negligence complained of is that of the conductor of the Trumbull avenue car in having stated to plaintiff that everything was all right, and of the servant in charge of the east-bound car upon the Grand River avenue track in running his car upon the plaintiff and injuring him. Plaintiff testified that he knew and was familiar with the location; that he knew of the tracks in Myrtle street, and knew of the double tracks on Trumbull avenue and Grand River avenue; that he had before made transfers at this point, going both east and west; that it had been raining; that he carried his umbrella, which was not raised, in his left hand with his tool case, and had a cane in his right hand; that the talk which he had with the conductor of the Trumbull avenue car was as he was getting off the platform of that car;

[132 N.W. 764]

that he walked in the usual gait and manner; that he knew the cars went in both directions on Grand River avenue, and that they would be moving in both directions at this time of day, and that automobiles and other vehicles were passing and repassing at this point, and that the only things he was listening for were automobiles and the westbound car, which he desired to take; that he walked on the pavement all the way, and claimed that he had in his mind a fairly good map of the place and location, by having frequently walked there and knowing the points of the compass, and how the streets run, and that he understood the plan of the corner; that he knew where the Grand River avenue car made its ordinary stop in going east before crossing the Myrtle street line. He testified that he did not observe the circle track appearing upon the blue print, and that he must have been north of it in crossing. He frequently stated in his testimony: ‘I relied on the assurance that the way was clear.’ It was a lowery, cloudy evening, and the lamps were lighted at the street crossing.

On his direct examination, the plaintiff testified that he had lived on the west side of the city all his life. After describing the taking of the car, about 5:45 p. m., going westward, he stated that he paid his fare to the conductor and asked him for a Grand River transfer; that as he arose from the car, from the second seat back, he inquired of the conductor if the way was clear for his crossing the tracks; that the conductor said, ‘Yes,’ everything was all right, and to go ahead; that the car in which he then was was stationary; that he left the car and proceeded to the Grand River tracks, to get in a position for the car going west; that he had his cane with him, and stepping in the triangle on the pavement he walked as carefully and hastily as he could with safety to cross; that as he stepped evidently over the tracks upon which the car would go toward the east he was struck by the eastbound car, resulting in the breaking of two bones in his left leg above the ankle; that the car came to a stop, and that he knew nothing of the approach of the car, hearing no gong rung; that he thought everything was clear for safe crossing; that after breaking the bones he immediately took hold of the iron holding the fender to the car, and sat down on the fender, instead of being thrown; that the motorman and conductor came down, and took him from the car to a grocery on the corner near by, and set him in a chair, from whence he was removed to the hospital; that for about 18 years he had been in the piano tuning business; that he worked from place to place in the city; that during all this time he had been going around doing his work by himself, always alone, and up to this time had got...