Coessens v. Rapid Railway

Grant, J. I think this case should be affirmed, and for the reasons stated by the learned circuit judge who heard the case, as follows: “ I feel constrained, under the evidence which has been offered in this case, to remove the matter from your consideration. I think that the testimony of the motorman and the conductor tends to show that the child was in the street at the time it was first observed. Now, there is no testimony, in my opinion, which tends to. negative this statement. Some of you are familiar with the premises in this case, as it is the house just immediately below the Quirk house, on Gratiot avenue, where we went in the case immediately preceding this. All the testimony tends to show, I think, that the child started to run, and that the [482] running of the child towards the track was the first intimation to those in charge of the train that there was any intention on the part of the child to approach to a position, with reference to the track, that was unsafe. Therefore I feel constrained to say in this case that there was no obligation on the part of the motorman to slacken the speed of the train until the instant that the child started towards the track. That being so, under the evidence that has -been given here, I think the interval of time which passed between the time the child started for the track and the time of the accident was not sufficient to predicate negligence on the part of the defendant, and I therefore feel constrained, gentlemen of the jury, to direct you to render a verdict for the defendant in the case at bar.” The learned and careful circuit judge went with the jury to the place of the accident, and was familiar with the distances and surroundings. No witness for the plaintiff, except Catherine Cooper, even attempts to fix the distance from the car to the place of the accident" when it became evident that the girl intended to go in front of the car. The car was running at a lawful rate of speed. I cannot agree with my Brother Moore that the testimony quoted by him shows that the car was four or five hundred feet away when the child started towards the track in such a manner as to indicate its intention to go upon it. Catherine Cooper is the only witness who testified to seeing the car and the child when she heard one of the women call to the child. She testified: “ I turned to see, and I saw the car coming not very far away, and its distance away, when I first noticed it, would be about around near that next house there on our side of the street, just the other side of the little brick church,- — -a little the other side of it when I first saw it.” The church, according to, the distances marked on the plat which was in evidence, is 252 feet from the place of the accident. On cross-examination she testified: “ Q. When you first saw the child, it was over on the other side of the road ? [483] “A. Yes, sir. “ Q. And started towards the track on a run ? “A. Yes, sir. “Q. And there were a number of children playing around there ? “A. Yes, sir. “ Q. And just the moment you saw the child start on the run, you knew that the car was so close that if the child went on its track it would be run over, — you thought so? “A. Why, yes; I surely must have, or I would not have run. That was my first thought, — that it would be struck. “ Q. Of course, where the car was at that instant you could not swear now, could you ? “A. Well, not exactly; no.” The motorman testified that he saw some children playing in the road in front of Coessens’ place when he was about 125 or 150 feet away, that he saw the child start to run across the track, and that, as soon as he saw her start, he shut off the power and put on the air. He is corroborated by the conductor. I think the judge was correct in holding that there was no testimony tending to negative their statement. The motorman was under no obligation to act until he saw or should have seen that the child was in danger. Judgment affirmed. Carpenter, Montgomery, and Hooker, JJ., concurred with Grant, J.