Merritt v. Foote

Grant, J. (after stating the facts). I think the court was correct in directing a verdict for the defendant, and in the instruction quoted gave the sound rule of law applicable to the case. In addition to the facts stated in the opinion of the circuit judge, the plaintiff testified that, when he had reached the curb, there was nothing to hinder his seeing the car a long way; that there was nothing to obstruct his vision; that he might have seen the car if he had looked. If he had looked, and seen the car approaching in such close proximity, it is conceded that he would have been guilty of contributory negligence in attempting to cross in front of it. The distance from the curb line to the south rail was 25 feet. A glance to the east, occupying but a fraction of a second, would have shown him the approaching car. His view to the west was unobstructed as he approached the street. He knew there was no car coming from that direction. He knew that his only danger was from the east. He chose to rely upon his glance to the east, when he could see a few feet only of the track. It is clear from the testimony that he should have expected a car from the east about that time. It requires no argument to show that greater diligence is required by travelers crossing highways on which are street cars than upon those where there are none. The public demands rapid transit, and ponderous cars are required and permitted to be used. They must go faster than the ordinary vehicles, and are permitted to do so by the ordinances of every city, unless it be in the most crowded thoroughfares. They cannot be stopped as speedily as vehicles drawn by horses. There is a reciprocal duty on the part of the street-railway companies, through their motormen, to watch and keep their cars under control as far as practicable. Is it reasonable to permit plaintiff to recover when the slightest care upon his own part would have avoided the accident? There is no claim of intentional or willful wrong on the part of the motorman. I find no probative evidence in the record that the gong was not sounded. [373] Two or three witnesses say they did not hear it, but they do not testify that they were listening, or paying any attention; on the contrary, it is evident they were not. The whole affair happened in a few seconds from the time the plaintiff reached the line of vision so that he could see the car and the motorman could see him. The nose of his horse was then 15 feet from the track. At what point was this motorman chargeable with knowledge that plaintiff intended to drive across the track in front of him? Not until the motorman had reason to believe that plaintiff did not intend to stop was he called upon to apply his brakes and shut off the current. Plaintiff’s horse was on the walk. He could have stopped his horse with perfect safety when his nose was within three feet of the line of the car. The negligence of the plaintiff is conceded, and, in my judgment, it is nothing short of gross negligence. His negligent act, which resulted in his injury, was almost simultaneous with the act of the motorman, if he was guilty of any; and the two negligent acts caused the disaster. This is a case of simultaneous negligence. If it be held that the motorman should have seen and known that this plaintiff was unconscious of danger, — unconscious of the approaching car, — and therefore guilty of willful negligence in running him down, what becomes of the doctrine of contributory negligence, which is firmly established by the numerous decisions of this court ? We have distinctly repudiated the doctrine of comparative negligence. I think the case falls squarely within that of Richter v. Harper, 95 Mich. 221 (54 N. W. 768), written by my Brother Montgomery, in which he said: “It is urged by plaintiff’s counsel that the negligence of defendants was so gross and willful as to excuse concurring negligence on the part of the plaintiff; it being claimed that, where the negligence of the defendant is gross or willful, the contributory negligence of the plaintiff is not a defense. This is but another way of stating the doctrine of comparative negligence, which has never obtained in this State.” [374] The case, in my judgment, comes expressly within the doctrine established by the following decisions of this court: Hine v. Railway Co., 115 Mich. 204 (73 N. W. 116); Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); McGee v. Railway Co., 102 Mich. 107 (60 N. W., 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Bennett v. Railway Co., 123 Mich. 692 (82 N. W. 518); Hills v. Foote, 125 Mich. 241 (84 N. W. 139). This is not a case for the application of the doctrine that plaintiff may recover, notwithstanding his own negligence exposed him to risk, if the injury was caused by the negligent act of the defendant after he had become aware of plaintiff’s danger. Such a case was that of Laethem v. Railway Co., 100 Mich. 297 (58 N. W. 996), where plaintiff’s milk sleigh stood close to the track while he was engaged in lifting a can out of his sleigh to transfer it to the sleigh of another. Neither is it the case of Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278), in which the plaintiff looked 75 or 80 feet, and judged that he had time to cross before a car would come. When one can readily see danger immediately threatening, and can easily avoid it, it is his duty to do so; and, if he is injured, he alone must bear the consequences. The judgment is affirmed. Montgomery, C. J., Hooker and Long, JJ., concurred. Moore, J., took no part in the decision.