Doherty v. Detroit Citizens' Street-Railway Co.

Hooker, J. The question in this case is whether the plaintiff was guilty of contributory negligence. The [210] proof conclusively shows that he walked upon a track of a street railway, and was almost instantly struck by the car. The most favorable view of the evidence is that he started to cross the street, and, at a distance of 12 feet or thereabouts from the track, looked to see if a car was coming, and saw none, but did see a covered grocery wagon and horse between him and the approaching car. He did not look again, but walked directly to and upon the track. The grocery wagon was not upon the track, and, when the car passed it, the wagon must have been sufficiently far from the track to permit the car to pass. Hence, when the plaintiff was within two or three feet of the track, he must have had an unobstructed view of the track, and the approaching car must then have been visible to him had he looked towards it. In the case of McGee v. Railway Co., 102 Mich. 107 (26 L. R. A. 300, 47 Am. St. Rep. 507), it was held that it was not sufficient for a man to look when 15 feet from the track, but that it was his duty to look again before stepping upon the track. This was the rule laid down as to steam roads in the case of Houghton v. Railway Co., 99 Mich. 308. If, as contended, the plaintiff’s view was obstructed by the wagon, that was a reason for greater caution. We are unable to distinguish this case from the McGee Case, and are of the opinion that it should be, and it is therefore, affirmed. Grant, C. J., and Long, J., concurred with Hooker, J.