Sloan v. Detroit United Railway

Ostrander, J. {after stating the facts). It was not error to direct a verdict for the defendant Detroit Creamery Company, because there was no testimony connecting it or its servants, or property, with what occurred. It was not error to direct a verdict for the defendant railway company, unless, as plaintiff claims, the circumstances may support the inference that the car was carelessly operated. The circumstance supposed to call for the exercise of particular care on the part of the motorman was the approach of the horses and wagon upon the intersecting street. This circumstance is to be regarded with reference to the duty owing to plaintiff, since she is entitled to recover if the motorman was negligent, though the driver of the wagon was also negligent. Manifestly the conduct of the motorman should have been suited to the appearance of things. If the horses were approaching the crossing at a walk, with the approaching car in plain view of the driver, it would be supposed that the horses, and not the car, would stop, if it became necessary for either to stop. The testimony is — and it must be viewed most favorably for plaintiff — that just before striking the car the horses were running and apparently out of control of the driver. The pole of the wagon pierced the side of the moving car near the front of the car. The team was traveling for some distance in view of the motorman. Usually a team of horses attached to a wagon must move some distance before acquiring any considerable momentum and escaping control. And if we assume that the driver of the horses was controlling and urging them to approach the crossing at speed, his purpose and the risk would ordinarily be apparent to a watchful and careful motorman. In my opinion, the testimony is sufficient to support the inference that the motorman did not exercise [74] the care for the safety of his passengers which the situation apparently demanded, and the case is within the rule of Thurston v. Railway, 137 Mich. 231 (100 N. W. 395), and Sewell v. Railway, 158 Mich. 407 (123 N. W. 2). The inference is, of course, open to rebuttal, and may be wholly destroyed when all of the surrounding conditions are considered. We have before us only the testimony for the plaintiff, and, considering that, we are constrained to hold that the court should not have directed a verdict for the defendant railway company. The judgment is reversed, and a new trial granted. Moore, C. J., and Steere, McAlvay, Brooke, Stone, and Bird, JJ., concurred.