Wilbur v. Michigan Central Railroad

Moore, J. The plaintiff was injured where the highway crosses defendant’s railway track. She claimed the defendant was negligent, and sued the defendant. The case was tried by jury. The plaintiff recovered a judgment in the sum of |3,000. The case is brought here by writ of error. The important question in the case is whether the judge should have directed a verdict in favor of defendant, because — 345 — the husband of plaintiff, with whom she was riding at the time she was hurt, was guilty of contributory negligence. The injury occurred soon after 6 o’clock p. m. October 23, 1903, at a highway crossing north of Oxford. The highway runs north and south. The railway track runs west of north and east of south where it crosses the highway at an acute angle. The plaintiff and her husband were going north. It is their claim that a train approached them running at a rapid rate of speed from the south; that the statutory signals for the crossing were not given, and while in the exercise of due care upon their part, the injury occurred. The defendant claims the statutory signals were given; that if the husband of the plaintiff had looked and listened as it was his duty to do he would have seen and heard the train in time to avoid the accident. Testimony was given in support of each of these claims. There is testimony that south of the railroad right of way there are obstructions on the east side of the highway for a considerable distance, which would obstruct the view of a train coming from Oxford. The husband of plaintiff after describing the approach to the crossing, the narrowness of the highway, the trees, buildings, and other obstructions that would prevent seeing an approaching train, among other things testified as follows: “To a certain extent I knew before the accident there were obstructions to the view, but as to where the exact points of vision were cut off, I could not say. I was present after the accident when an effort was made to estimate how far south of the crossing you could be, and still get a view down the railroad right of way. I knew these obstructions were here at the time of the accident, and I knew the orchard was here, and I knew they obstructed the view. On the day the test was made to estimate how far south of the track you could be and still see a train coming or see up the right of way, if I remember right, it was somewhere between 19 and 21 feet. We made the test with the rig, and by measurement. If I remember right you would have to be closer in a rig than you would on the ground. — 346 — Q. The night of October 33d, as you approached the crossing what, if anything, did you do with reference to ascertaining whether or not the train was coming ? “A. I stopped my horse, and looked, and listened. “ Q. How did you look, in what way ? “ A. I leaned forward in the rig, and looked around, the side curtain of the buggy. “ Q. And how far were you from the- track when you. stopped ? » “A. 35 or 40 feet, in my judgment. “ Q. You could see up the line, track, could you not — ■ the cattle guards ? “A. Yes, sir. “ Q. How long did you remain with the horse still ? “A. Not over a quarter of a minute. “ Q. Just a few seconds ? “A. Yes, sir. “ Q. And then what did you do? “ A. I started the horse. I had driven the horse before, and had driven it around the cars. It was very afraid. “ Q. As you drove on towards the crossing, 35 or 40 feet, whatever the distance was, what, if anything, did you do during that period of time to discover ’whether a train was coming or not ? “A. I continued to look. “Q. How? “A. By leaning forward and looking around the curtains of the buggy. “ Q. What was the first intimation that you had that a train was there ? “A. I saw the gleam of the light strike the horse. “ Q. Do you know whether or not the horse at that time was on the track ? “A. I believe the feet of the horse were on the rail. “ Q. Well, what do you know about what happened after that ? “A. I don’t remember anything until I was on the train. “ Q. Was there a flagman stationed at that crossing on the night in question ? “A. I did not see one; no, sir. “ Q. And there was no alarm or signal bell to warn, you that night ? “A. I didn’t see any, and didn’t hear any. — 347 — “ Q. What evidence did your horse show, if any, that it had either seen or heard the approaching train ? “A. It gave no sign whatever. After the accident, the first thing I remember was being on the train.” On the cross-examination he testified, among other things: • “ Q. Now, could you illustrate just what position you were in when you were continuing to look after you started up your horse ? “ The Court: That is a pretty hard supposition for him in the court-room. “ Q. Then I will ask you this question: You were about half out of the buggy weren’t you ? “A. My head and shoulders would be over the edge of the buggy. “ Q. You were in that way looking southeast and you would necessarily have- to get around like this here (illustrating to witness). “A. Yes, sir. ( “ Q. And in order to do that you had to get up in the buggy, did you not ? “A. Yes, you would have to raise in the buggy. “ Q. You would have to raise up in the buggy; you were standing on your feet ? “A. Partly. “ Q. Partly? “A. Yes, sir. “ Q. And looking around in that direction ? “A. Yes, sir. “ Q- Do you mean to say that you continued in that position ? “A. Yes, sir. “ Q. How long ? “A. Until I reached the point of the track. . “ Q. What do you mean ? “A. Until I was struck. “ Q. And looking in that position all of the time, driving the horse,' were you ? “A. Yes, sir. Don’t remember which hand I was driving with. “ Q. Well, continuing in that position, partly upon yoür feet with your head and shoulders in front of the top and looking southeast, you continued to drive the horse on a walk across the track, did you ? “A. I didn’t get across the track. — 348 — “ Q. No, but you started to go across ? “A. Yes, sir. “ Q. And the horse was on a walk all the time ? “A. Yes, sir. “ Q. Yes, and continuing to look in that position did you see that train ? “A. No, sir. “ Q. When did you see the train ? “A. I saw the light strike right in my face when I got on the track. The horse was on the track. I was not quite on the track, the rig was in the right of way, in my judgment. “ Q. You were looking all of the time ? “A. Yes, had been. “ Q. And continued to look in the southeast direction up to the time you saw the light' on the horse ? “A. Yes, sir. “ Q. You didn’t see a headlight ? “A. Yes, sir. “ Q. You didn’t see it except as the light struck the horse ? “A. It struck me in the face. “ Q. How far was the buggy at that time,according to your best judgment ? “A. Well, I didn’t have any judgment after I saw that light. “ Q. You are unable to tell what you did after you saw the light ? “A. Yes, sir.” His wife corroborated his testimony. She was sitting on the left hand side of the buggy, and testified that after her husband started the horse after the stop was made, she continually looked through the window in the back curtain in the direction from which the train would come, and heard and saw nothing indicating its approach until the horse was on the right of way. Mr. Skillman, whose farm is located about a mile north of this crossing, testified: “ My attention has been called to how close you must get to the crossing to get a view of an approaching train from the south, and I have made an examination to ascertain how close you must be to the crossing before you can see down the right of way, and see a train. That — 349 — distance is 7 paces from the south rail south; at a distance of 7 paces south from the south rail you can see down here by Lett’s house. They were ordinary paces, possibly 21 feet. That is sitting in the buggy, you possibly could see further standing on the ground, because when you are in the buggy you would be looking into these trees along here. You cannot see a train approaching looking under those trees unless the leaves are all off from the trees, then you might possibly see better that way. _ In the 30 rods from Fuller’s house to the crossing, driving north there is approximately 100 feet that you get a view of the track until you reach a point about 21 feet from the crossing. The view is completely shut off of an approaching^ train from the south between Fuller’s house and the point 21 feet south from the crossing, except for this 100 feet approximately, when the leaves are on the trees.” On the cross-examination he testified: “ A. May 20, 1904. At that time I think the leaves were all out on the trees and I could just see by Lett’s house at a distance of 21 feet away, sitting in a buggy with my horse headed north. My position in the buggy was 21 feet south from the south rail. My estimate of the distance, I could see down the track from that position 21 feet from the track, is 10 or 12 rods; have never made that test since that time.” The trial of this case commenced February 13, 1905. Benjamin Gardner, upon whose farm the crossing is where the accident happened, after describing the condition of the road south of the crossing, and the obstruction on the east side thereof, stating a pace is calculated to be three feet, testified: “ Q. Did you make any examination to ascertain how far south of the crossing you could be and still get a view down the track of an approaching train ? “A. I paced it. I made it 7 paces from the south rail in the traveled portion of the highway. I made the test last Friday. There were no leaves on the trees at that time. I was in a cutter; never tested it before; never paced it before. “ Q. Have you ever made any test ? “A. Yes, I made a calculation in the summer time with a buggy. I would drive up and would look, then I would drive a little further, and see how near I could get to the — 350 — railroad track before I would see it, and then I made an estimate as to how far it was from the horse’s head to the track.” He also testified that “when the leaves were on, you would have to be still nearer the track before you could see the approaching train.” There were other witnesses who gave like testimony. There were upwards of a dozen witnesses sworn upon each side. We have the question, then, before us whether it can be said, as a matter of law, that because at a point 21 feet south of the south rail the observer could see in the daytime (when he was there for the express purpose of seeing how far away he could see an approaching train), one could see it as some of the witnesses say, 12 or 15 rods, and others say perhaps 40 rods, that the husband of the plaintiff was guilty of contributory negligence, which may be imputed to her, because upon a cold, stormy night he did not, at this point, stop his horse and avoid the accident. Account should be taken of the fact that some men do not think as quickly as others. It should not be forgotten that the^ horse was afraid of the cars. At this point his head was within 10 or 12 feet of where it would be struck by a passing train, a trying situation indeed for both driver and beast. I am not prepared to say that under such circumstances we can say, as a matter of law, the husband was guilty of contributory negligence, because he did not then stop his horse and avoid the accident. The question presented is not one of law, but is one of fact, namely: Did the driver do what a reasonably prudent person would have done under like circumstances ? The circuit judge in a very fair and impartial charge left the question to the jury. See Potter v. Railroad Co., 140 Mich. 362; Monroe v. Railway Co., 129 Mich. 309; McDuffie v. Railway Co., 98 Mich. 356; Richmond v. Railway Co., 87 Mich. 374; Haines v. Railway Co., 129 Mich. 475; Hintz v. Railroad Co., 140 Mich. 565. It is said the verdict is against the weight of evidence and for that reason a new trial should have been granted. — 351 — We do not think the record is in a condition to present that question,' briefly stated, for the following reasons: A motion was made for a new trial, among other reasons because the verdict was against the weight of evidence. No request was made of the circuit judge that he file his Teasons for doing so, if he refused a new trial. He did not file any reasons. Later a petition was filed asking for leave to file anqther motion for a new trial, because of newly discovered evidence. The petition was granted. Another motion for a new trial was made for the following reasons, to wit: “ First. Because of each and all of the reasons set forth in the motion for new trial heretofore filed. “ Second. Because of the discovery of new evidence the nature and application of which is more fully set forth in the affidavits of William C. Rugenstein and Alice Ru;genstein hereto attached.” The judge was requested, if he overruled the motion, to file his reasons for doing so. The judge filed his reasons for refusing the new trial. He apparently treated the motion as one made upon the ground of newly discovered evidence. In the reasons he gave for refusing a new trial, he referred to the newly discovered evidence, and no reference was made to any reason relating to the question of whether the verdict was against the weight of evidence. He was not requested to make a further finding relating to that question, but counsel contented himself with taking exceptions to the reasons given for denying the motion for a new trial. The record does not contain any statement of the reasons which actuated Judge Smith in refusing a new trial because the verdict was against the weight •of evidence. The statute relating to this subject is section 10504, 3 Comp. Laws. It has been construed in McRae v. Lumber Co., 102 Mich. 488; Finley v. Widner, 116 Mich. 679; Stevenson v. Railway Co., 118 Mich. 651. The judgment is affirmed. Carpenter, C. J., and Montgomery, J., concurred with Moore, J. 'Ostrander and Hooker, JJ., concurred in the result.