Weitzel v. Detroit United Railway

Kuhn, J. The plaintiff is the father and administrator of the estate of Stanley G. Weitzel, whose death was caused by injuries received when he was struck by one of the defendant’s- cars on June 13, 1912. The accident occurred on Gratiot avenue, in the city of Detroit, at the intersection of Belvidere avenue. Gratiot avenue runs in a northeasterly, and , southwesterly direction, but is spoken of in the record and briefs and in this opinion as running in a general easterly and westerly direction. ' It is intersected by Belvidere avenue on the north side 20 or 30 feet east of the intersection of the same avenue on the south side, and the street next easterly from Belvidere, crossing Gratiot avenue, is McClellan avenue. The deceased, who was 9 years and 3 months of age, lived on Belvidere avenue, north of Gratiot, and attended school on Belvidere avenue south of Gratiot. He had been warned and instructed by his father how to proceed safely across the street, and taught to stand and look both ways before proceeding to cross. This had been done two weeks before the accident. On the day of the accident he walked homeward from school about noon with two schoolmates, Josephine Abel, 10 years old, and Olive McCabe, 12 years old. The girls left him before they reached Gratiot, and crossed a vacant lot to a bakery on the south side of Gratiot, about 90 feet west of the inter — 10 — section of Belvidere. When deceased reached home, his mother sent him to the same bakery on an errand, and on his way he stopped at a grocery on the north side of Gratiot, looking directly into Belvidere on the south. By this time the two girls had completed their errand in the bakery and were waiting outside the shop for Josephine’s sister. . They saw deceased, with another boy, standing on the curb in front of the grocery across the street. A west-bound car passed on Gratiot avenue, and the deceased started to cross. The car was followed by two stripped automobiles on a testing run, but deceased reached the devil’s strip before they passed. He was struck, however, by a car going in the opposite direction, and the injury resulted in his death an hour later. The testimony mainly relied upon by the plaintiff in support of his claim is that of the two little girls, Josephine Abel and Olive McCabe. The latter testified that she saw deceased on the north curb after the west-bound car had passed. Then she noticed the car coming from the west, and before it reached the bakery she observed that there was no motorman in sight, and remarked to Josephine, “Here comes a car without a motorman.” Josephine replied, “Oh, yes, there he is; I can see his cap.” ■ Then Olive saw the automobiles coming down the north track from the east, and saw deceased. standing on the devil’s strip. The car was now opposite the bakery, 90 feet distant from the grocery. The car and the automobiles closed in together and seemed to put deceased in a pocket. The car passed, leaving deceased lying between the tracks, and came to a stop beyond Belvidere. Josephine Abel testified to having seen nothing of the motorman but his cap, and to not having heard a gong. She said the automobiles were not. exactly in the groove of the north track, but were running a little to the north of the track, presumably with two wheels outside the most northerly rail. She further stated: — 11 — “By this time the car had come a little past the greenhouse. It was right by the greenhouse when I first saw it. The next thing I noticed Stanley was out between the car and the ■ testers. The testers were a little below Stanley. The car was west of Stanley, and the testers were east of him. He was in between the two. I hollered, 'Oh, Mister, Mister, stop!’ I hollered that, because I thought something was going to happen. The car did not stop. From the time that I noticed the car without any motorman, except the motorman’s cap, the car did not sound any gong at all. It went about to McClellan before stopping. While the car was passing where I had seen Stanley, I heard a bang. After I heard the bang, I saw Stanley lying on the ground. Some one picked him up. He was taken to the drug store. I did not stay there very long, as Miss Teagan, one of our teachers, came along and sent us home. I could not say just where the east-bound car was when I saw Stanley between the tracks.” The court refused to grant defendant’s motion for a directed verdict at the close of the plaintiff’s proofs, and the defendant thereupon offered testimony of passengers on the car that plaintiff’s decedent ran into the side of the car with his head turned away and that they heard the bump of the collision. The learned trial judge directed a verdict for the defendant at the close of all the proofs, for the reason that under the facts of this case it must be held that plaintiff’s decedent was guilty of contributory negligence, and further held that the defendant could not be held to be guilty of gross or discovered negligence. A verdict having been directed against the plaintiff, the testimony must be considered in the light most favorable to plaintiff’s claim. We think it may be conceded (and plaintiff’s counsel made no claim to the contrary at the argument) that the deceased, because of the instruction he had received, his experience in crossing the street car tracks, and being a bright and intelligent boy of his years, was — 12 — capable of being held guilty of contributory negligence. See Holian v. Railway Co., 194 Mass. 74 (80 N. E. 1, 11 L. R. A. [N. S.] 166), and note. However, can it be said that plaintiffs decedent was guilty of contributory negligence under the facts shown in the instant case most favorable to plaintiff’s claim? He was standing on the curbstone on the north side of Gratiot avenue until the west-bound car had passed, and then started to walk across; the east-bound car being then a block away. He reached the devil’s strip when the car was at Metloff’s 90 feet west of him, and was facing the street car, with the automobiles at the same time approaching him on the northerly track from the other direction at about the same distance as the car was from him, and he thus found himself in a pocket. Standing in this narrow strip, with the car and automobiles rapidly approaching him from opposite directions, it must be said that he was in a position of imminent peril. There were three courses of conduct open to him — to stay where he was, cross in front of the oncoming car, or retreat in front of the oncoming automobiles. Any one of them was dangerous to him, and it was necessary to form his judgment quickly. It may be said that he chose the wrong course, but we are of the opinion that it cannot be said as a matter of law that an error of judgment under such circumstances is negligence. As was said by this court in Fehnrich v. Railroad Co., 87 Mich. 606, at page 612 (49 N. W. 890, at page 891) : “One put suddenly in peril is not required imperatively to do that which, after the peril is ended, it is seen he might have done and escaped. The law makes allowance for the fright and lack of coolness of judgment incident to such peril. It would be absurd to require of this boy, when he saw and heard the car upon him, and was suddenly called upon to decide how he should escape it, to exercise the same coolness — 13 — and forethought that an uninterested bystander might manifest.” See, also, Mercer v. Railroad Co., 151 Mich. 566 (115 N. W. 733). If defendant’s witnesses are to be believed, the deceased was clearly guilty of contributory negligence; but the question is one which should have been submitted to the jury. We are also of the opinion that the question of the defendant’s gross or subsequent negligence should have been submitted to the jury. The motorman testified that the car was going 8 or 10 miles an hour, and that he could bring his car to a stop within 45 or 50 feet. While it may be said that a person merely standing in the devil’s strip is not in such a position of peril as to oblige the motorman of a car to bring it under control, nevertheless the position of plaintiffs decedent in the devil’s strip, the automobiles coming toward him from one direction, and the car coming from the other, taken together, did create a perilous situation, and if the motorman had seen him and the situation he was. in, as he should have if a proper lookout had been kept, it was his duty to immediately get his car under control, and, if possible, avoid the accident which resulted. His failure to do so under these circumstances would warrant the jury in finding the defendant guilty of subsequent negligence, even if it should be found that the plaintiffs decedent was guilty of contributory negligence. Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581); Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482); Schindler v. Railway Co., 87 Mich. 400, 405 (49 N. W. 670.); Richter v. Harper, 95 Mich. 221, 225 (54 N. W. 768); Montgomery v. Railway Co., 103 Mich. 46, 52 (61 N. W. 543, 29 L. R. A. 287); Daniels v. Traction Co., 143 Mich. 493, 505 (107 N. W. 94); Bladecka v. Traction Co., 155 — 14 — Mich. 258 (118 N. W. 963); Clark v. Traction Co., 167 Mich. 694, 697 (138 N. W. 927); Fike v. Railroad Co., 174 Mich. 167, 205 (140 N. W. 592); King v. Railway Co., 176 Mich. 645 (143 N. W. 36). The judgment is reversed, and a new trial granted. McAlvay, Stone, Bird, and Moore, JJ., concurred with Kuhn, J.