Hebblethwaite v. Detroit United Railway

Grant, J. (after stating the facts). The reciprocal rights and duties of travelers at the intersection of streets has been frequently discussed in this court. It is the duty of the motorman to watch, and, so far as practicable, keep his car under control. On the other hand, it is the duty of the traveler to be alert. He is chargeable with notice that the street cars must travel at a higher rate of speed than, ordinary vehicles; that they are heavy and cannot stop as soon as other vehicles; that they cannot turn aside; and that the only method of avoiding collisions is to stop. This court, speaking through my Brother Montgomery, said: [16] “It is incumbent upon the driver of a vehicle before attempting to turn across the track to take proper means of ascertaining whether the way is clear, and this is especially true of the attempt to turn across the track in the middle of a block, or at any place other than a regular crossing.” Fritz v. Railway Co., 105 Mich. 50. See, also, Hilts v. Foote, 125 Mich. 241; McGee v. Railway Co., 102 Mich. 107, 112 (26 L. R. A. 300). Plaintiff was familiar with the situation and the danger. He had driven daily for some time over this place, and without any inconvenience could have informed himself of the approach of the car. If he could not from the place where he stopped see the car, he knew that the motorman- could not see him. If he stopped with his horse’s head a few feet from the track and the motorman saw the horse, he (the motorman) would have been justified in acting upon the belief that the horse would not be driven across until his car had passed. Plaintiff produced two witnesses as to the speed of the car. One frankly testified that he could not tell the speed, but that the car was not going particularly fast. The other testified that it was going pretty fast, about 20 miles an hour. This witness was riding a bicycle. The street was rough. He was going in the opposite direction to the car. He met and passed it at the alley midway of the block. When he got to the next street, he heard a crash. It is thus clearly demonstrated that he on his bicycle was traveling at the same rate of speed as was the car. He testified that he could not tell how fast he was riding, but that it would be impossible for him to ride “ on that rough pavement to exceed 10 miles an hour.” Under this testimony there was no evidence that the car was going at an unlawful rate of speed. No negligence can be imputed to the defendant on account of the dangerous nature of the crossing. It is only made dangerous by the narrow streets and the erection of buildings upon the street lines, so that the traveler must approach within a short distance from the track before he [17] 'can look along Hastings street and see approaching cars. Hundreds of such situations occur in the streets of cities. The situation, which is lawful, imposes greater care and watchfulness upon travelers in controlling vehicles as well as street cars. At the intersections of streets where travel is congested policemen are frequently stationed to control the passage of vehicles and pedestrians. Where the travel is not congested, every traveler and every manager and driver of vehicles, whether drawn by horses or propelled by electricity, or other motive power, must exercise due care and watchfulness. The degree of care and watchfulness must depend upon the conditions surrounding each place. There was ample room for plaintiff in this case to stop and look before placing himself in a place of danger by attempting to cross the track. Had he done so, the accident would not have happened. It was his duty to do so. We think the case is ruled by Merritt v. Foote, 128 Mich. 367; Doherty v. Railway Co., 118 Mich. 209; and Hilts v. Foote, supra. See, also, Borsehall v. Railway, 115 Mich. 473. It is, however, claimed that the motorman at the time the plaintiff was upon the track was for the moment inattentive and looking in another direction. If this were so, that would not excuse the act of the plaintiff in attempting to cross the track in front of the approaching car. Neither would the failure of the motorman to sound the gong excuse such act. In such case the negligent act of each would have contributed to the accident, and neither party, if injured, could recover against the other. Judgment should be affirmed.