Beagle v. Pere Marquette Railroad

Brooke, C. J. The following facts are undisputed on this record: The plaintiff, a woman in the prime of life and in the full possession of all her faculties, had lived immediately adjoining the crossing at which she was injured for .a period of a year and a half. She was familiar with the crossing and had occasion to use it with great frequency. She knew the number of tracks crossing the street at that point and their uses. The accident occurred in the middle of the day, and therefore in broad daylight. She knew that the freight engine, which had detached itself from its train and stood upon the crossing a few feet (she says 10) south of the sidewalk upon which she was proceeding must wait in that position until the south-bound passenger train had cleared the main track. Her intimate knowledge of the movements of the passenger train and the engine are indicated by the following testimony: “Q. You would frequently see trains, a freight train, pull in on the side track, the same as this one did? “A. Yes, sir; I have. “Q. At this time of day? “A. Yes, sir. “Q. You have seen the engine come up near Second street and stop? “A. Yes, sir. “Q. That would be right opposite your window, wouldn’t it? “A. Yes, sir. — 19 — “Q. And wait for that passenger train to go by? “A. A great many times. UQ. A great many times? “A. Yes, sir. “Q. This same passenger train you speak of you .saw on this day? “A. That 1:05 train. “Q. Then the engine would go up on the side track and over onto the main line and take water? “A. Yes, sir. “Q. Then get back and couple on its train and go on? “A. Yes, sir. “Q. And that happened up there on this 1:05 train time, it would always stand there until the 1:05 train cleared on the main track? “A. Yes, sir. “Q. That was the regular movement of trains there? “A. Yes, sir. “Q. You knew, also, that when the 1:05 passenger train pulled by the crossing this engine always started up? “A. Always.” The south-bound passenger train stood at the station and obstructed her passage over the main, or easterly, track. Approaching from the west, she crossed the.side track and drew near to the passing track upon which the engine, which had been detached from the freight train, stood a little south of the walk she was traversing. The distance between the side track and the passing track is 19 feet. The distance Between the passing track and the main track, upon which the passenger train stood, is 31 feet. Nearing the engine, she testifies that she received a signal from the fireman inviting her to cross in front of the engine which was not in motion. This she started to do, and had nearly crossed the track, which is only 4 feet 8% inches wide, when, according to her testimony, she noticed a person on the passenger train, — 20 — which was pulling out, make a motion. This motion she describes clearly as a beckoning motion. But instead of stepping forward in obedience to the motion, through some misinterpretation, she stepped backward and remained standing an instant or two upon the passing track immediately in front of the engine. She testifies clearly that had she continued going forward, instead of stepping backwards, she would have reached a place of safety on the strip 31 feet wide between the two tracks. She testifies equally clearly that she stepped back upon the passing track and in front of the engine without looking to see whether or not the engine remained stationary. In order to clearly demonstrate this statement of fact, I subjoin an excerpt from her testimony given on cross-examination : “Q. You knew this engine or this passenger train could not strike you unless you were on the track, didn’t you, Mrs. Beagle? “A. No answer. “Q. What; didn’t you know that? “A. Why, I knew it; yes, sir. “Q. You knew if you went across the second track, between that and the third track, that you would be in a place of perfect safety, didn’t you? “A. I did not think of'it. “Q. Weren’t thinking of your safety at that time? “A. Why, certainly I was thinking of my safety; that is why I went across when the fireman motioned to go across. I thought he was placing me in a place of safety. “Q. What say? “A. I supposed he was placing me in a place of safety. “Q. You knew where a safe place was without his telling you? “A. I hád not time to get clear over when I was motioned to step back again. “Q. Why not? Well, you did stop and step back? “A. Certainly, on the second crossroad there. — 21 — “Q. Now, you knew, did you not, that right in front of you, if you had continued going ahead instead of stepping back there, that the place was perfectly safe for you? “A. Yes, if I went ahead. “Q. You knew that? “A. Yes. “Q. Now, you appreciated it at the time? A. Yes, but I thought you meant— “Q. Yes? “Mr. Rathbone: I want her to complete her answer. I submit the witness is entitled to finish. What was that, Mrs. Beagle? “Q. Meant what? “A. Meant the motion I got from the passenger train I was to step back, go back or something, some danger or something I did not know what; that is all I know about it. “Q. You knew that right in front of you, did you, there was no danger? “A. Well, I did not know what it meant. If I had I would not have stepped back into danger; I was not there for that purpose. “Q. I appreciate that, but, Mrs. Beagle, didn’t you know where a safe place was on that crossing at that time? “A. If I had got over on that side— “Q. Answer my question. “A. Yes, that would be a safe place. “Q. You knew it at the time, didn’t you? “A. Yes, I knew it at the time. “Q. That answers the question. We have finally got that settled. Then if you had gone into a place that you knew was safe you would not have been injured, would you? “A. No, if I went over there. “Q. And the fireman had nothing to do with your stopping the second time, did he? “A. Not the second time. “Q. What? “A. No, I could not say as he did. “Q. And you were going to step into a place of safety? “A. Yes, sir. — 22 — “Q. Had plenty of time to do it, did you not? “A. Yes, sir; if I proceeded. “Q. Yes, yes, if you proceeded, that is right. “A. No answer. (‘Q. Instead of that, you misinterpreted the warning that was given you by somebody on the passenger train? “A. Yes, sir. “Q. Now, this was broad daylight? “A. Yes, sir. “Q. Nothing to prevent your seeing this engine move towards you if you had looked any time? “A. If I looked any time? “Q. What? “A. When I looked up it was coming onto me. “Q. There was nothing to have prevented you from, seeing it if you had looked any time, was there? “A. No. “Q. No. You knew that as soon as that passenger train came along that that engine was going to start up? “Mr. Rathbone: I object to it as having been asked and answered a good many times already, if the court please. “The Court: I think it has been asked once or twice. “Mr. Bray: I am asking it in a different connection, that is all. “The Court: Very well, she may answer it. “Q. Repeated. “A. I did not think anything about its starting right away. “Q. You have not answered the question. I would like to have you answer the question. “A. I didn’t know it would start right away. “Q. You had seen it a great many times do that same thing, have you not? “A. Not exactly the same thing. “Q. But you knew it was standing there waiting for the passenger to clear the track? “A. Certainly I did. “Q. You knew it was going to start up some time very close to the time that that passenger train went by? — 23 — “A. I did not know how close; I presume it would start up because it was uncoupled. “Q. You knew it was there for the purpose of waiting for that passenger train to clear the track? “A. Yes, sir; I did.” From these facts it appears conclusively that, assuming the direction of the fireman to have been given as claimed by her, she was not led into a position of danger thereby. Had she followed the instruction, she would have had ample time to reach a place of safety. Her failure to leave the track as she might have done, without haste, in obedience to that instruction, or her re-entry upon it without assuring herself that it was safe to do so, I believe, under the decisions of this court, were such acts as to compel us to say that she was guilty of contributory negligence as a matter of law. In taking the one or two steps backward as she said she did, and remaining standing upon the track without assuring herself that it was safe to do so, she certainly failed to use the most ordinary and necessary precaution for her own safety. The decisions of this court are very numerous to the effect that entering or remaining upon a railway track in a place of known danger, without first assuring oneself that it is safe to do so, is negligence as a matter of law. The question of defendant’s negligence is therefore, in my opinion, unimportant. Whether the bell was rung or not, it would still be plaintiff’s duty to use reasonable care for the protection of her own life and limb, and the warning which the ringing of the bell would have conveyed to her was one which she already had in the knowledge that the engine would start up immediately after the passenger train pulled out, and it appears to have been in motion before she was struck. The language used by this court in the case of Boutell v. Railroad Co., 133 Mich. 486 (95 N. W. 568), is peculiarly pertinent: — 24 — “He knew that the train was standing there when he left the power house, that it stopped only long enough to accommodate travelers in getting off and on, and that it was liable to start up any moment. The noise alone, even though the bell was not rung, was a sufficient warning to him. It was his duty to both listen and look. A turn of the head, which would require but a fraction of a second, would have shown him the train coming in close proximity to him. Instead of doing this, he stepped across the rail onto the track directly in front of the engine, which was approaching only a few feet from him. * * * A railroad track itself is notice of danger. This being so, it is the duty of every one attempting to cross to use ordinary precautions for his own safety.” See, also, Brinker v. Railroad Co., 121 Mich. 288 (80 N. W. 28); and Spaven v. Railroad Co., 130 Mich. 579 (90 N. W. 325). It is said that the plaintiff had the right to rely upon the custom of the defendant to ring the bell. The exact effect of the defendant’s negligence upon the duty of the plaintiff in the premises is well pointed out in Ellis v. Railroad Co., 169 Mass. 600 (48 N. E. 839), where it is said: “While the raising of the gates justified the plaintiff in attempting to cross when he did, and while that fact, and the facts that no whistle was sounded and no bell was rung, are to be taken into consideration on the question of how much he must himself look and observe as he makes his way across, these circumstances do not excuse him from looking and listening and taking thought for his own safety. He cannot rely wholly upon them, and cannot recover without showing more, as to his own conduct, than that he so relied. * * * We are of opinion that, as matter of law, there was no evidence from which it could be found that the plaintiff himself exercised due care, and the verdict for defendant was rightly ordered.” I am of opinion that the motion made by defendant — 25 — for a directed verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law should have been granted. The judgment should be reversed, and a new trial granted. McAlvay, Stone, Ostrander, and Steere, JJ., concurred with Brooke, C. J.