Puffer v. Muskegon Traction & Lighting Co.

Brooke, J. I am of opinion that the conclusions reached by my Brother, the Chief Justice, are not warranted by the facts disclosed in this record. Mr. Justice Moore quotes plaintiff’s testimony on direct examination. On cross-examination he testified, in part, as follows: “ When I got down in front of Kraft’s saloon, I then looked to see if there was any car coming. Kraft’s saloon is on the corner of Hall and Ottawa streets. I should say I was about the middle of the saloon when I attempted to look back. I think Kraft’s saloon is about 33 feet wide. When I was in front of the saloon — about the middle of it — I attempted to look back. I had a top on my machine. The top was down the back. This top on the back would interfere with looking back. When I looked back, I was facing towards the east on Ottawa street. I did not stop the machine. I looked right around the side like that (illustrating), and I could see, I should think, to where Vincent’s store is. There were braces on each side of the top. I just put my face up to the braces and looked back. It is a one-seated, and I was sitting on the right-hand side of the car. I should think the seat was 3 feet wide. I bent over and looked to the left. I didn’t move out of my seat. I kept my hand on the steering gear all the time. I didn’t see any car coming. I was running at the rate of 8 or 10 miles an hour then. After I looked back just before I got to Hall street, I noticed the hole in the pavement. I went around it, and turned to the right further than I had any time before coming down Ottawa street, in order to miss the hole, I got within about a foot of the gutter. I then went across Hall street pretty well on the right-hand side until I got past the center of Hall street towards the curbing on the other side; that was two-thirds of the way across Hall street. Then I turned to the left to cross the track. “Q. Now, the time that you had looked down the track [195] was down there just before you had reached that hole, wasn’t it ? “A. Just before I got to the hole. "Q. You didn’t look any other time ? “A. No, sir. “Q. That was that time in front of Kraft’s saloon ? “A. Right in front of the saloon. After I turned across the track, it was about 6 or 8 feet from the time I turned until the front wheels were on the track. I have lived here in Muskegon some time to know about the running of street cars, where they run, and how often they run. I knew that the cars run down there about every 15 minutes. From Hall street to Vincent is 195 feet, probably.” Assuming that plaintiff’s observation when he looked back was a proper and adequate one, which may well be doubted from a perusal of the foregoing, it is still apparent that he cannot recover. When he looked back, he says he was at the 'middle of Kraft’s saloon, which is 33 feet wide. He therefore traveled one-half this distance, 16£ feet, plus two-thirds of the width of Hall street (which is 55 feet wide), 36 feet, plus 6 or 8 feet after he turned to cross, making a total of 58 or 60 feet. He traveled this entire distance and drove his car upon defendant’s track without again assuring himself that he could do so with safety, when a glance would have shown him that the car was in dangerous proximity. It was broad daylight, he was entirely familiar with the situation, and there was an unobstructed view of straight track for 600 feet. When plaintiff made his observation, he could have seen the car, had he taken a position far enough to the left-hand side of his machine to permit him to get an unobstructed view of the entire block. Rut, in any view we may take of his care or lack of care in making this observation, we must hold that in driving the distance he did drive thereafter, and going upon the track of defendant without again assuring himself that it was safe to do so, he was guilty of contributory negligence, as a matter of law. Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); [196] Stevenson v. Railway, 167 Mich. 45 (132 N. W. 451), and cases there cited. The witness Baker was permitted to testify that he had timed, one of defendant’s cars -upon a day different from that upon which the accident occurred, and that it ran 25 miles per hour. The testimony was taken subject to objection and exception. The court permitted the answer only after the following evidence was introduced by plaintiff: “Charles Vandenberg, recalled for further cross-examination by Mr. W. J. Turner, under the statute, was examined, and testified as follows: “ ‘Q- All these cars operated on the Ottawa street line run at the same rate of speed, do they not ? “ ‘A. Yes, sir. “ ‘Q. And how long had you been on that Ottawa street line F “‘A. How long? “ ‘Q. Yes; how long nad you been? “ ‘A. We worked there off and on at different times. “ Q. I mean how long had you been before October, up to this time ? In October how long had you been working there steadily ? “ A. We don’t work there steadily, only just as the regular crews lay off. “ ‘Q. But you do know that they all run at the same rate of speed ? “ ‘A. Yes, sir. “ ‘Q. Between the Steiner House and all this distance that you cover ? “‘A. Yes, sir.’” It is obvious that the witness Vandenberg, who was the motorman in charge of the car at the time of collision, could not know the rate of speed at which other cars of the defendant were run at all times. This evidence was valueless as a foundation for the incompetent testimony of the witness Baker. The judgment should be reversed and a new trial granted. Steere, MoAlvay, Stone, and Ostrander, JJ., concurred with Brooke, J.