Smith v. Detroit & Mackinac Railway Co.

Grant, J. (after stating the facts). That the bell was rung is conclusively established. It was charged that the fireman, who was leaning out of the cab of the engine on the right as it approached the crossing, and whose duty it was to keep watch of the highway on that side, had defective eyesight. He, however, testified that he saw the deceased as she approached the crossing, and notified the engineer, who was keeping watch on the other side, as soon as he saw that she was in danger. The engineer testified that, as, soon as the fireman notified him, he applied the brake and reversed the engine. It was the rule of the company to keep a man upon the rear of trains when backing over public highways, but it appears there was no such rule or custom when an engine alone, with the reach attached, was crossing this highway. It is insisted on behalf of the defendant that the engineer and fireman' were in such case sufficient to watch the highway and guard against any danger. Whether there was any negligence on the part of the defendant we find it unnecessary to determine. The case must be decided upon the contributory negligence of the deceased. The learned circuit judge recognized the well-established rule that a traveler, in approaching a railroad crossing, is bound to look, and, if he cannot see, to stop and listen, and that, if the deceased approached this crossing as an ordinary traveler, she was guilty of contributory negligence. It was left to the jury to determine whether she was excused from the performance of this duty “by rea [286] son of the signal which her husband had given from the depot, and by reason of all the surrounding circumstances;” and the court instructed them that “if she was justified in believing, or perhaps was led to believe, that at that time it was safe for her to approach this depot without stopping and looking and listening, she was not guilty of contributory negligence. * * * And I say to you, gentlemen of the jury, that she was guilty of contributory negligence, unless the circumstances were such as, in your judgment, justified her in relaxing her vigilance at that time before making the crossing, — unless the circumstances were such as justified her in not taking the usual precautions.” It seems hardly possible that she did not see the engine approaching the crossing from a southwesterly direction while she was going west, for it was within her line of vision without turning her head. Either she saw it, and thought she had time to get across, and did not discover her mistake until she had gotten close to the track, where she stopped and alighted and was struck, or else she paid no attention whatever, and did not see the engine until she was close to the track and the reach was close upon her. If she saw it, and, thinking she could get across, concluded to make the race and take the risk, clearly she was guilty of contributory negligence. This is the most probable theory. If she did not see it until it was close upon her, was she not bound to look and avoid an obvious danger ? There was no occasion to listen, for sight would have given her all the information or warning she needed; there was no occasion to stop to look, for she could see without doing that. She was skilled in riding the bicycle. She was riding, as one of plaintiff’s witnesses testified, “two or three times as fast as you could walk.” She knew that engines and cars might be expected to cross at any moment. She was entirely familiar with the character of the cars and engines, and the danger attendant upon the place. 1 It is urged that she was, by the signal of her husband, [287] invited to enter the defendant’s car; that from that moment she was in the custody of the railway company, and was notified by it that the way from where she then was to the station, a distance of 762 feet, was safe, and that no train would thereafter be sent over this spur track until she was safely across it. If she desired to become a passenger, it was her duty to, be at the depot at the schedule time for the arrival and departure of the train. For some reason she was late. She had evidently just left her home •as the train arrived. Those living east of this spur track, •and desiring to become passengers upon that train, had had ample time to reach the depot. Unless the train waited beyond its schedule time, no one east of this spur track could reach it in time to take passage. Even if, as to outgoing passengers, there was any duty upon the defendant not to run its engines over this spur track while passengers .might be coming to the train, that duty was fulfilled. Those in charge of the engine had the right to assume that passengers desiring to take that train were at the depot. There was nothing in the situation to notify those in charge of the engine that the deceased desired to become a passenger upon the train. Besides, it is mere conjecture whether she saw the signal of her husband. He testified, “I got no reply from her indicating that I had attracted her attention.” There is no evidence upon which to base a finding that she was acting upon the invitation of the defendant, or that she was relieved from the usual precautions required of those crossing a railroad in a public highway. She was, therefore, an ordinary traveler, chargeable with the same notice that she was approaching a dangerous place, and with the same duty to look and to protect herself, as would be imposed upon any traveler. This being so, the case is clearly ruled by Grostick v. Railroad Co., 90 Mich. 594 (51 N. W. 667); Tucker v. Railway Co., 122 Mich. 149 (80 N. W. 984); Lau v. Railroad Co., 120 Mich. 115 (79 N. W. 13); Bennett v. Railway Co., 123 Mich. 692 (82 N. W. 518). [288] Many authorities will be found cited in the above cases. Judgment reversed, and new trial ordered. The other Justices concurred.