Motyka v. Detroit, Grand Haven & Milwaukee Railway Co.

On Rehearing. Clark, C. J. Since this court in Davis v. Railway Co., 241 Mich. 166, adopted the standard of conduct laid down in Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66 (48 Sup. Ct. 24, 56 A. L. R. 645), it has been held, quite consistently, that one about to cross a railroad track must take all reasonable precaution and be assured that it is safe to cross, and that failure so to do is contributory negligence, precluding recovery. This holding generally has been applied to so-called open crossings. But this case ought not to be treated as an open crossing case. Nor can it be said to be a case' where the flagman was not on duty when plaintiffs attempted to cross, nor one where no act or conduct of the flagman could be construed as an invitation to cross or an assurance of safety. When plaintiffs ’ decedents came to the crossing the watchman was on the crossing. It was then a protected crossing. It is settled law, and it is common sense, that one may place some reliance on the protection afforded at the crossing. That being true, is it not wrong to hold that one about to cross *419 a protected crossing must on Ms own account take all the precautions and have all the assurances of. safety required as to open or unprotected crossings? Does not such a holding ignore completely the settled law that one may rely to some extent at least on the protection afforded at the crossing? If one may place no reliance on gates and flagman, why have them? In these cases, taking the facts, as we must, in the light favorable to plaintiffs, it appears that the boys came to the crossing protected by a flagman. They stopped and looked. The flagman’s shanty was there. The crossing was obstructed by a moving train. The flagman was on the crossing. The train passed. The crossing cleared. The flagman left the crossing. The boys started across and were killed by a train which they might have seen, and, had this been an open crossing, it would be held that they should have seen it. The flagman should have protected this crossing as against such train, and, according to some of the evidence, he did not. The boys ought not to be held guilty of contributory negligence as a matter of law in not looking more carefully before crossing the track in view of the conduct of the watchman. It was for the jury to say whether, in view of the facts, their failure to look' more carefully was contributory negligence. Adhering to former opinion, the judgments are reversed, and causes remanded for judgments on the verdicts, with costs. McDonald, Potter, Sharpe, and Fead, JJ., concurred with Clark, C. J.