Wood v. Detroit City Ry Co.

• Decision Date: 16 January 1884
• Citation: 18 N.W. 124,52 Mich. 402
• Court: Michigan Supreme Court
• Parties: WOOD v. DETROIT CITY RY. CO.

18 N.W. 124

52 Mich. 402

WOOD v. DETROIT CITY RY. CO.

Supreme Court of Michigan

January 16, 1884

Where a party drives his vehicle upon a street car track, without looking to see whether a car is coming, and then refuses to get out of the way, though there was ample opportunity to do so, he is guilty of such negligence as to prevent his recovery in an action on the case for the negligence of the driver.

If the action were trespass, it might become necessary to decide whether or not the injury was purposely inflicted; but if it was, the car company would not be liable for the willful trespass of the driver.

Error to Wayne.

John G Hawley, for plaintiff and appellant.

John. C. Donnelly, for defendant.

COOLEY C.J.

This is an action for personal injuries alleged to have been caused by the driver of the defendant negligently causing his car to run against the vehicle of the plaintiff as he was driving along one of the streets of Detroit. The plaintiff was sworn as a witness in his own behalf, and he also called the driver as his witness. After hearing both stories the circuit judge ruled that there was nothing to go to the jury, and directed a verdict for the defendant. The plaintiff brings error.

According to the plaintiff's story he was driving an one-horse vehicle along the street on one side of the defendant's track, when he encountered obstructions and turned towards the tracks, so that his right-hand wheels were over the rails. He did not look behind him to see if a car was coming until he felt something strike the rear wheel. He then looked around and saw it was the street car, and the driver, as he says, "motioned me with one hand to go on, or he would knock a wheel off me. I laughed at him and said, 'You better not knock off more than one or two of them, or somebody will have to pay for them.' He kept on motioning to get out of the way. I told him I could not get over those wagons, and I was not going to try, but I would get out of his way just as soon as ever I could. I kept on. There was a number of wagons standing on the other side of the street loaded with brick and three, or four, or five of them with the rear ends of the wagon out on the street further than the fore end, which brought the rear end of these wagons very near the car track, so that I had to get with the wheels on the right-hand side of my wagon partially onto the track, and some places it got off the track, and some places I had to get right out pretty well over the track." Up to this point the plaintiff was not only in fault, but he was the only party in fault. He had driven upon the track in front of an approaching car, without looking around until the car had come in collision with his vehicle. This was gross carelessness on his part. But further on his evidence shows that the other side of the track was entirely unobstructed, and that there was nothing to prevent his crossing at once and allowing the street car to proceed on its way. The car had come to a stand-still on the first collision, and the plaintiff's conduct in maintaining his ground, and responding to the driver's request that he should get out of the way by a laugh and a threat, was not only a wrong to the defendant, but also to any persons who might then be riding in the car, or awaiting its coming.

But the plaintiff further testified that as he was leaving the track the driver called out, "God damn you I can smash you anyhow," and that he let go the brake and the car almost instantly struck the...