Evans v. Lake Shore & Michigan Southern Railroad

McGrath, J. This is an action on the case for negligence. Deféndants’ road crosses Croghan street about 300 feet east of Orleans street, in the city of Detroit, at grade. The southerly side of the street, west of the track, is occupied by frame dwelling-houses, two stories high, built close together, and flush with the southerly line of Croghan street; and the most easterly house is about 40 feet from the westerly track. Cars going north on defendants’ track climb a heavy grade. A gate-keeper and drop-gate are maintained by defendants at the crossing. A street railway is operated on Croghan street. Plaintiff claimed that, while driving easterly upon one of the streetcars, he stopped his car at Orleans street, to allow a passenger to alight; that in approaching the crossing the street-car conductor usually jumped off, and ran forward to the crossing, and signaled him whether to come on or stop; that in this instance the conductor went forward as usual, and plaintiff turned on the brake to check his car, — 445 — so as to give the conductor time to report; that, as he did so, one Hurley, who was at the gate, and whom plaintiff supposed to be the gate-man, beckoned him to come on, and he turned off the brake, and started forward; that it was quite usual for the gate-keeper to signal him as he approached the crossing; that he could not see any distance south'of Croghan on defendants’tracks until his horses had passed the last dwelling on the south side of the street; that the grade of the street at the tracks is considerably lower than it is 40 feet west of the crossing; that, as he approached the crossing, Hurley called out to him to hurry up, and he started up his horses; that he had no knowledge or warning of the approach of cars until'the heads of his horses were within a few feet of the tracks; that when he discovered the train he was too late to stop his car, and the only course open was to get across before the engine; that, as he attempted this, a locomotive with tender attached, going north, tender first, struck the rear part of his car, killing one passenger, injuring others, and seriously injuring plaintiff; that the engine was running at a rate of speed prohibited by the city ordinances; that the gate was open at the crossing, and no whistle or bell was sounded. Defendants claimed that the whistle was blown, and that the locomotive had a steam bell attached; that Hurley was not the gate-man or their agent; that the gate-man and Hurley were together in the gate-keeper’s shanty when the engineer of the approaching locomotive whistled for a switch, which was north of and near the crossing; that the gate-man and Hurley then came out of the shanty, the former going to open the switch, and the latter going to the locality of the drop-gate. The gate-man says that he told Hurley to attend the gate or look out for the street-cars; but Hurley says that he received no instructions from the gate-man, denies .that he signaled the plaintiff — 446 — to come on, and claims tliat he would have dropped the .gate, but did not do so because the horses were in the way when he thought of it. The gate stood 38 feet west •of the tracks. The court submitted the case to the jury, but after the jury had retired, and it became evident that they could not agree, the jury were recalled, and directed by the court, upon its own motion, to bring in a verdict for defendants. The court erred in directing a verdict. The case comes clearly within the principles laid down in Richmond v. Railway Co., 87 Mich. 374. In that case there was no gate, but there was a flagman, whose duty it was to notify the public of approaching trains. He was in the shanty, and ran out too late to avert the collision. It was shown that he could be seen sitting in the shanty from the street-car. In the present case there was a gate, which was open, and thereat a person, who not only did not close it, but who, it is claimed, signaled the plaintiff to come on; in other words, assured him that it was safe to cross the railroad tracks. The testimony tended to show that the gate-man . had up to this time been present at his post, and that usually, when trains were approaching, the gate was closed, or dropped across the street-car tracks. The gate-keeper was clearly negligent in leaving his post, knowing that the engine was approaching the crossing, without closing the gate, or giving some signal of danger. It has been frequently held that when gates are provided the public have a right, the gates being open, to presume, in the absence of knowledge to the contrary, that the gate-men were properly discharging their duties, and that it was not negligence on their part to act on the presumption that they were not exposed to a danger which could only arise from a disregard of their duties by the gate-men. Glushing v. Sharp, 96 N. Y. 676; Railway Co. v. — 447 — Schneider, 45 Ohio St. 678 (17 N. E. Rep. 321). It is surged that gate-men cannot be present at all times; but "the gate is always present, and, when open, it tends to -assure the public of the absence of danger. Railroad •"Companies can protect themselves and the public by closing the gate in the temporary absence of the gate-man. In the present case it is urged that Hurley was not a -servant of the defendants, and' hence defendants are not responsible for his act in assuring plaintiff that it was safe to cross. Conceding that Hurley was not the servant of the company, and was a mere by-stander, his conduct bears upon the question of the contributory negligence of the plaintiff. It is one of the circumstances properly to be con-sidered by the jury in determining that question. If, as he claims, he did not signal plaintiff to .come on, but did signal him to stop, the jury would be entitled to consider that fact .in determining the question of plaintiff’s negligence, and its ¡weight would not be materially affected by the fact that -he was not the servant of the company. Hurley occupied the place usually occupied by the gate-man. His pres•enee there, the plaintiff’s belief that he -was the gate-man, his conduct there, and the open gate, are all cir•cumstanees to be considered by the jury in determining the question of plaintiff’s negligence. An open gate would not excuse plaintiff’s advance upon the crossing in the face of a signal of danger, or -the protests of a bystander; and an assurance of safety, although given by a ■stranger, is entitled to consideration and weight in ■explanation of the conduct of one. to whom’the assurance .is given. It is insisted that the testimony tends to show that the Tules of the street-dar company provided that, before "attempting to cross the tracks, the driver should stop the •car, and wait until the conductor should go ahead and see that it was safe to cross; that the driver did not — 448 — observe this rule, and was therefore guilty of negligence, and cannot recover. A careful examination of this testimony, and a fair construction of it, will not disclose the existence of such a rule, or testimony tending to establish its existence. The company’s orders undoubtedly were, if the gates were up, and no gate-man was present, that the driver should stop, and the conductor should first see that it was safe to cross; but, if the gate was not closed, and the gate-man was present and signaled! them to come on, such signal was to be considered as an assurance of safety, and they were to go on. This was the testimony of the plaintiff, the conductor, and of other witnesses. Upon this point it is only necessary to quote an extract from the testimony of Gr. S. Hazard, the superintendent of the street railway company, who says: “The order of my company was for the men to see that the way was clear before they crossed. That was the written order they had; so that, whenever the gate-man gave them the right of way, by either telling them or directing them to proceed, it was our instructions to> rely upon his order. The instructions were, if the man at the gate waved them to come on, to go on. At that time there were no instructions to get down to run ahead; but the instructions were to see that the way was clear, and, if he waved them on, to go on. We do not now depend upon anybody but ourselves. Everybody runs ahead. But at that time we were relying upon the railroad. * * * We depended upon the day watchman for safety.” It is urged that the man at the gate told the driver to “hurry up,” and that that of itself was a warning; but this was after the gate-man had beckoned the driver tn come on, after the driver had started up the horses, after he had reached the line of defendants’ right of way, on a down grade, and before either driver or conductor had seen the engine approaching. It cannot be presumed that. — 449 — the drivei’ was possessed of the same knowledge as was possessed by the gate-man. In determining the question of plaintiff’s negligence, all the circumstances must be considered. The facts disclosed by this record respecting plaintiff’s conduct were not such- as to warrant the court in determining as a matter of law that plaintiff was guilty of contributory negligence. That matter should have been submitted to the jury. Respecting defendants’ negligence, the act which induced plaintiff to approach the crossing ’ without the usual precautions was not necessary to sustain the charge. Their negligence was established by. the. showing as to what they failed to do. If they failed to close the gate, and to w'arn plaintiff of the danger, a case was made out, and plaintiff was entitled to recover, unless plaintiff was shown to have been negligent. If plaintiff was warned not to approach the crossing, and the warning was of such a nature that an ordinarily watchful, and prudent person could have seen and understood it, and plaintiff did not heed it, but drove upon the tracks in the face of it, he was gtiilty of contributory negligence, and cannot recover. If, however, the plaintiff was assured by a signal from any person, whether he was a servant of defendants or a stranger, that it was safe to cross, that circumstance is entitled to be ’considered by the jury as excusing his failure to observe the precautions ordinarily taken, especially as the person giving the signal occupied the place usually occupied by the gate-keeper, and plaintiff beliqved him to be the gate-keeper. In view of what has been already said, it is unnecessary to discuss the instructions given to the jury before they were recalled. The judgment is reversed, and a new trial ordered, with costs. — 450 — Morse and Long, JJ., concurred with McGrath, J. Ohahplin, C. J., concurred in the result.