Rahaley v. Detroit United Railway

Moore, J. The plaintiff recovered a judgment against the defendant for injuries received by him in a collision when he attempted' to cross defendant’s street railway track. The case is brought here by writ of error. We quote from the brief of appellant: “In discussing the assignments of error, we propose to classify the assignments under four heads: (1) The refusal of the court to direct a verdict at the conclusion of the plaintiff’s case; (2) the error claimed in the argument of counsel; (3) error in the charge of the court; (4) refusal of the court to grant a new trial.” 1. Did the court err in refusing to direct a verdict in favor of defendant? Counsel base this claim upon the theory that plaintiff was, according to his own testimony, guilty of contributory negligence. The accident occurred on Woodward avenue in Highland Park, in a thickly settled and busy neighborhood. The paving was torn up on alternate sides of the street every other block, and the street intersections were filled in with loose planks and dirt, making the crossings very rough. The plaintiff was driving a one-horse rig loaded with crockery and glassware. He testified that before attempting to cross the tracks he looked and listened and could see up the street to the next street intersection, about 240 feet, where his further view was cut off by vehicles, including a moving van, which were crossing the tracks at that intersection, and that he saw no car. He claimed he thought he had ample opportunity to get across and that he was nearly over when the rear wheels of his rig were struck. There is testimony that the car was running 40 or [98] 50 miles an-hour and that it ran 650 feet after colliding with plaintiff before it was stopped. The witnesses for defendant told a different story. We think the testimony offered on the part of the plaintiff made a question for the jury. See Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278); Chauvin v. Railway, 135 Mich. 85 (97 N. W. 160); Deitsch v. Traction Co., 155 Mich. 15 (118 N. W. 489), and the cases cited therein; Hibbler v. Railway, 172 Mich. 368 (137 N. W. 719). 3. Was there error in the charge of the court? Complaint is made to the following portions of the charge: “I charge you it was the duty of the motorman to be watchful to see he did not collide in going along the track when others were going over the track. “I charge you again that the street car tracks form a part of the public highway, and the public have a right even to drive upon the tracks, and they drive upon the tracks repeatedly; and if you believe from the testimony in the case that the driver in this case was exercising reasonable care and caution before he went upon the track, if he looked back to see if the car was approaching before he went across, the track as he claims, and, seeing none, he started on the tracks, that he had a right so to do. And then it was the duty of any one who attempted to go on to take notice all the way in that way.” Again: “I charge you again that, if the highway at the point or location where the collision occurred was obstructed by conditions for any length of time, the defendant would be presumed to have notice of the condition of the highway. That is the torn-up condition, not that the tracks were torn up, but that they required a crossing to be built over to cross the grass plat between the T rails at each of the street crossings; that fact also appears from the testimony.” Again: “I charge you again, if you believe from the testi [99] mony that the motorman had ample time to have discovered the plaintiff’s position and then made no attempt to hold his car until it was too late, and the collision occurred for that reason, then the company would be held to be negligent. That he could in the exercise of common prudence — the plaintiff might have always reasonable time to make a crossing, and make it so without negligence.” Again: •' “And then again that the defendant company, by reason of its tracks being laid in the center of Woodward avenue, had no exclusive right to that portion of the highway, and that the use by the cars of the. highways does not deprive the persons of their right; to drive thereon. They are constructed and operated upon the assumption that they will be driven upon, and over, and mutual care should be used in both cases by both parties.” Again: “I charge you, then, that under the testimony in this case that the motorman in charge of the car, if you believe his testimony, said that he saw the plaintiff when he was first attempting to cross the tracks, and he immediately realized and appreciated the plaintiff’s danger, it then became his duty to have his car under control, in the way that any prudent person would do, where a danger was nearby.” It will be noticed that much of this charge is ambiguous, and it fails to state the duty on the part of the plaintiff to act as a reasonably prudent man should. It also fails to state that, if the motorman acted as a reasonably prudent man should, he would then have performed his duty. The law applicable to cases like this has been so recently stated in the cases cited that we deem it unnecessary to repeat what is said therein. It may be well to add, however, that when a street is torn up so badly as this one was, with crossings so difficult to make, this situation makes added care [100] necessary on the part of both the driver of the vehicle and the motorman. It is not necessary to discuss the other assignments of error. The judgment is reversed, and a new trial ordered. Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.