Daly v. Detroit Citizens' Street Railway Co.

Grant, J. Plaintiff was employed by the city of Detroit to sweep the cross-walk at the intersection of Woodward avenue and Congress street. He was famil [194] iar with the work and the situation,- having frequently been employed in this work at this place. The street at this point was occupied by three tracks on Woodward avenue. Cars were frequently passing on each track, of which fact he was aware.. He stood sweeping on the easterly track, with his back to the south. A horse car was coming north on this track. Plaintiff continued his work, without looking for the approach of cars. A policeman standing in the street close by, seeing the car approaching, and that Daly was paying no attention, shouted to warn him. Plaintiff, instead of stepping to the east, stepped backward, to the west; thus placing himself between two tracks, which were about, four feet apart. A horse car going south on the second track had reached the place where he stepped back, so that he was struck by the front of ,the car, back of the platform, thrown down, and injured. Two grounds of negligence are alleged, viz., the employment of incompetent drivers and conductors, and want of due -care and caution in driving and passing on adjacent tracks. There was no evidence of the employment of incompetent servants. 1. No negligence was shown on the part of the defendant. Both the cars were being driven at the rate of speed provided by the ordinance. The driver of the car upon the track where plaintiff was at work had the right to.suppose that plaintiff would step out of the way upon its approach. He therefore was under no obligation to slacken his lawful speed until he saw that plaintiff was in danger. Plaintiff did get out of the way of this car in time. He testified that he did not know whether he stepped out of the way immediately when the policeman called to him, or whether he. stopped and gave another brush or two. The driver of the south-bound car, which struck him, even if he had seen him upon the other track, had no reason to suppose he was in peril, or that he would step back against his car to get out of the way of the [195] other. The driver was past him when he stepped back, for he was struck by the corner of the car behind him. 2. It was the plaintiff’s duty to keep watch of the approach of cars, as he might readily do, and place himself out of danger. The accident was the result of his own want of proper care. The case is ruled by the following authorities: Kelly v. Hendrie, 26 Mich. 255; Pzolla v. Railroad Co., 54 Id. 273; Gebhard v. Railway Co., 79 Id. 586. Judgment reversed, and no new trial ordered. McGrath, O. J., Montgomery and Hooker, JJ., concurred. Long, J., did not sit.