Boutell v. Michigan Central Railroad

Grant, J. (after stating the facts). We think the plaintiff was clearly guilty of contributory negligence. He heard the noise made by the engine and the train. He must have heard the exhaust of the steam. He testified he supposed that these noises were caused by another engine, farther away in the defendant’s yard. He had no right to rely upon this supposition. He knew that the train was standing there when he left the power house, that it stopped only long enough to accommodate travelers in getting off and on, and that it was liable to start up any moment. The noise alone, even though the bell was not rung, was a sufficient warning to him. It was his duty to both listen and look. A turn of the head, which would require but a fraction of a second, would have shown him the train coming in close proximity to him. Instead of doing this, he stepped across the rail onto the track directly in front of the engine, which was approaching only a few feet from him. [493] In Brinker v. Railroad Co., 121 Mich. 283 (80 N. W. 28), where there were two roads running parallel and near each other, the plaintiff believed that the approaching train, the smoke of which he saw, was on the track farthest from him, and not upon the one which he was approaching. He was held guilty of contributory negligence. W e said: “ It was his duty to stop and ascertain the road the train was on. * * * He was the master of his own movements, and slight precaution would have averted the accident.” It was equally the duty of the plaintiff in this case to stop, if necessary, and determine which train made the noise he heard. He was not. safe if the noise came from the passenger train. He was safe if it came from the engine in the yard. A glance would have given him the necessary information. It was not dark. He testified that it was getting dusk, but admitted that there was no difficulty in seeing the engine and the train, and other objects around. A railroad track itself is notice of danger. This being so, it is the duty of every one attempting to cross to use ordinary precautions for his own safety. This plaintiff seeks to excuse the ordinary precaution to look by saying that he saw a friend, and he started to walk faster, and did not turn around to look, and that, if the gate towards which he was going had been lowered, he would have seen it. This case, in principle, is indentical with Spaven v. Railway Co., 130 Mich. 579 (90 N. W. 325), and the language there used is equally applicable to the conduct of the plaintiff in this case. Judgment reversed, and a new trial ordered. The other Justices concurred.