Lau v. Lake Shore & Michigan Southern Railway Co.

Grant, C. J. (after stating the facts). The'rights and duties of a traveler upon a bicycle, when approaching a railroad crossing, are before this court for the first time. These rights and duties must be determined without reference to the distressing result of this accident to the plaintiff. The learned counsel for plaintiff, in his argument, conceded that it was the duty of the plaintiff to exercise a high degree of care. Manifestly, this was his duty because of the danger to which he was exposed. Did he, — 119 — under the circumstances, exercise that degree of care which the law requires ? Had he been on foot and been injured, he could not recover. Gardner v. Railroad Co., 97 Mich. 240; Brandy v. Railway Co., 107 Mich. 100. — 120 — Had plaintiff the right to ride his bicycle past the obstruction to his sight at such a rate of speed that he could neither control it nor dismount after passing the obstruction, before running in front of or against the engine ? He knew the distance between the tracks, and must be held to know that, when his body passed the obstruction, his front wheel would be very near a moving train on the main track. There would have been no substantial delay to him if he had dismounted and walked past the obstruction. He could have dismounted when he was eight feet from the track. Had he done this, the danger would have been avoided.' He was experienced in bicycle riding, and whether he could have ridden slowly enough to avoid the danger we need not determine. A bicycle is almost noiseless, and it seems almost incredible that, had he listened, in the stillness of the night, he could not have heard the approaching train. It seems equally incredible that he could not have seen the light of the headlamp of the engine shining upon the sidewalk ahead of him, even if it did not shine on the rails of the track over which the engine was approaching. There was a slight curve in the track east of the crossing, and it is urged that for this reason the headlight did not shine upon the track. There is no testimony in the case to show whether this was so. We are cited to but one case involving the duty of the bicyclist in crossing a railroad upon the public highway. Robertson v. Railroad Co., 180 Pa. St. 43 (57 Am. St. Rep. 620). In that case the bicyclist, instead of dismounting, rode around in a circle in the street, waiting for a train to pass. In endeavoring to cross, he was struck by a train upon another track and killed. In that case the obstruction was a tool-house standing seven feet from the track. The court said : “ The law requires a full stop, not only for the sake of time and opportunity for observation, but to secure undivided attention, and the substantial, and not mere perfunctory, performance of the duty to look and listen. Riding round and round in large circles or small circles, — 121 — waiting for a chance to shoot across, is not a stop at all, either in form or substance. Considering the ease of dismounting and the control of the rider over his instrument, a bicycler must, under all ordinary circumstances, be treated as subject to the same rules as a pedestrian.” If a person is required to stop his team and listen in cases where he cannot see, why should not the bicyclist, when his view is obstructed to within a few feet of the track,' be required to dismount and ascertain the situation ? It is no more trouble for him to dismount than it is for the driver to stop his team and listen. The delay is no longer; the trouble is no greater. In some States the question of contributory negligence is eliminated by statute, and the railroad made liable for damages in every case where it fails to give the statutory signals; but that is not the law in this State. If the plaintiff was going, as he testified, “at a gait that I could just keep on it nicely, so that I could see or hear if anything was in the way of my crossing there in the shape of trains,” it is difficult to understand how the flash of the headlight and the collision occurred the instant he came in sight of the train. It is further more difficult to understand how, if he struck the side of the engine, his bicycle was found upon one side of the track and he upon the other. This condition can he accounted for upon no other theory than that he was in front of the engine when he was struck. Cars cannot stop instantly. Engineers and firemen do not always perform the duties imposed upon them in giving the signals. While the presumption may be that they do, human nature is not yet so perfect that every one performs his duty. To sustain the plaintiff’s right of action would be to hold that he has the right to rely absolutely upon the performance of this duty by the trainmen, and that he may ride along regardless of consequences, and rely upon the absolute performance of this statutory duty. Ordinarily, this train could be heard when coming a long distance away. Ordinarily, the light from the headlight would be seen shining upon bodies in front of — 122 — it within the plaintiff’s vision. Yet, in the face of the danger, we are asked to say that he was in the exercise of ordinary care, although, without any inconvenience, delay, or trouble to himself, he might have avoided the accident. The attention of the bicyclist must be more or less diverted by the control and management of his wheel, and this is especially true when he is trying to ride so slowly that he can just keep his balance. It is common knowledge that a good rider can ride as slowly as the average walk and keep his balance. But, if this were not so, it would be an additional reason why he should dismount. So, too, if there was any wind from the southeast,, which would prevent his hearing the noise of the train, all the more the necessity for him to take this precaution to protect himself. No one will contest the proposition that a traveler, in the exercise of due care, is entitled to rely on the statutory warnings. But the troublesome.question always is, Was the traveler exercising such care? When the'facts are undisputed, and are such that different conclusions cannot reasonably be drawn, the question is one of law for the court. It seems to us only common sense that he, in crossing a place the very existence of which is notice of danger, should stand in no better position than a pedestrian. In a second he can become a pedestrian, and in a second or two more place himself in position to know whether there is danger. If there is no danger, he can mount, and proceed with the delay of only a few seconds. If there is danger, he can avoid it. We think the law requires that he should take this precaution, and does not permit him to rely solely upon his sense of hearing and the performance of duties imposed upon others. Is it not common prudence for one, in entering a dangerous place, to take that course which involves no inconvenience, delay, or trouble to himself, and which will, if followed, insure his own safety as well as that of others ? If it is, the law requires him to take it. The plaintiff in this case was in a better position to pro — 123 — tect himself than was the plaintiff in Phillips v. Railway Co., 111 Mich. 274 (66 Am. St. Rep. 392). Mr. Phillips was quite deaf. He was riding in a single carriage, with the top up and curtains off. He could not see the train while sitting in his carriage, because a pile of railroad ties obstructed his view, but could have seen it if he had stopped, stood upright in his carriage, and looked. This court, in a unanimous opinion written by Chief Justice Long, held that it was negligence in Mr. Phillips not to take this precaution, and that it barred his right of recovery. We are of the opinion that the circuit judge was right in directing a verdict. Judgment affirmed. Hooker and Long, JJ., concurred with Grant, C. J.