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

*659 Wiest, J. Four tracks of defendant railroad company cross Woodbridge street east in the city of Detroit. November 26, 1923, about 4 o’clock in the afternoon, an automobile truck, driven by plaintiff, was struck by a locomotive, going north, while he was crossing the third track, counting from the east, and plaintiff received injuries. This suit was brought by him to recover damages for injuries to his person. At the trial plaintiff was the only witness, and, at the close of his testimony, the court directed the jury to render a verdict* for defendant on the ground; of contributory negligence of plaintiff. Plaintiff reviews by writ of error. We assume, for the purpose of decision, that defendant company was guilty of negligence. Was plaintiff guilty of contributory negligence, in the light of the most favorable view of his testimony? The street was damp, the crossing was planked and plaintiff was driving west. Not seeing defendant’s watchman at the crossing, plaintiff brought his truck down to a speed of about four miles an hour when six or eight feet from the easterly or first track in front of him. At that point his view of the tracks was obstructed by a building on one side and cars standing on the easterly track. When he got to the center of the first track he could then see the tracks to the south for at least 150 feet, because of a curve. As he was at the second track he saw a train approaching from the south on the third track, and, as he was then traveling at about 10 miles an hour, and the locomotive was 30 or 40 feet away, he felt the best thing he could do was to keep on going, and he drove on; the truck was struck and he received injuries. Had he looked to the south, when crossing the easterly track, he unquestionably would have had a view of the train in time to have stopped his automobile. Instead of looking to the south at that point, he looked to the north, and drove into the danger zone without *660 taking a view to the south until too late to avoid the accident. It is evident that 'before he started to cross the tracks he noted the absence of the watchman, and assumed, as was proper, the duty of crossing under his own supervision. We need quote but his own summary of his testimony: “Q. In other words, isn’t it a fair statement to say that you looked north when you were at the first track, and you were going 8 or 10 miles an hour and by the time you looked south you had got to the second track? “A. Yes. “I think that is what I have been saying. I didn’t think I made any other statement. That is the best recollection I have of the accident. I looked north at the first track when I was going about 8 or 10 miles an hour. I don’t think I looked south at the first track. When I was going across the second track I looked south and saw the train coming. I then put the brakes on and then decided I had better take the brakes off and speed up and I went over the second and third track, speeding up all the time. When I reached the third track the train struck me. That is the clearest recollection I have of the accident.” He was careful at a point where he could not view the tracks to the south, and careless when he reached a point where he could see and still be in a zone of safety. Under his testimony it would have been idle to submit the case to the jury, for any verdict for plaintiff could not stand. The law is too plain to call for citation of authority. The judgment is .affirmed, with costs to defendant. Sharpe, C. J., and Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred with Wiest, J.