Griewski v. Ironwood & Bessemer Railway & Light Co.

Brooke, J. (after stating the facts)'. Several wit — 15 — nesses for plaintiff were sworn as to the rate of progress plaintiff’s decedent was making immediately before the impact. One says: “He was walking very slow; the ordinary rate for an old man, * * * an ordinary walk.” Another: “He was walking not fast or slow, just medium, just the right way, an average walk, just a good brisk walk.” For the defendant one witness testified upon the same point: “It was a kind of a little fast like; it was not hardly a trot, but a kind of a fast walk.” Another: “When he started across he started at an ordinary rate, and continued the ordinary rate until he got about in the middle of the road, between the car track and the sidewalk. The truck was coming on the north side of the tracks. It wasn’t a very great distance away. It was a little ways behind me. I think Mr. Griewski was a little afraid of the truck on account of the noise it was making, and he started a little faster across the street. In fact he started to run.” Considering all this testimony we think it may be fairly deduced that decedent was progressing diagonally across the street and directly across the track in front of the oncoming car at a rate of speed at least as great as three miles an hour. Indeed the assumption that a higher rate was maintained would probably be justified. Assuming, however, that the rate did not exceed three miles per hour, plaintiff would cover 4.4 feet per second or in two seconds 8.8 feet. The distance between the rails plus the overhang of the car was approximately 8 feet so that from the time of his entrance to the zone of danger to his clearance something less than two seconds elapsed. In dis — 16 — posing of the motion for a new trial the learned circuit judge said: “The evidence shows that the car was going about four miles an hour and. could have been stopped in six or seven feet.” Assuming the analysis of the testimony by the learned circuit judge as to the rate of speed of the car to be justified by the record (though perhaps a slightly higher rate of speed would be nearer correct), the car would be traveling at the rate of a trifle less than 5.9 feet per second or in two seconds 11.8 feet. Decedent and the car came in contact just as he was stepping over the south rail something less than two seconds after he entered the zone of danger. It is clear that defendant’s agent had the right to assume that decedent would not attempt to cross in front of the- car then less than 12 feet away from him and that he was under no obligation to act until decedent had actually placed himself in a place of danger by stepping on the track immediately in front of the car, then, and then only, the legal duty rested upon defendant’s agent to use all reasonable means to avoid injury to decedent whose position of peril was the result of his own antecedent negligence. Blatnikoff v. Railway, 202 Mich. 69. The motorman in charge of the car testified as follows: _ “When I first saw Mr. Griewski he was just almost directly in front of the car, possibly two or three feet in front of the car. At the time I first saw the load of lumber it was in front of Hogen Nelson’s shop, and it was ahead of me, although I cannot say how far. At the time I first saw Mr. Griewski the wagon was just driving out then getting away from the track. I watched the load of lumber continuously from the time I sounded the gong until I saw Mr. Griewski. “When I first saw Mr. Griewski I threw on the air fes fast as I could. That means that I pushed the — 17 — lever over. At that time I cannot, state exactly what speed the car was traveling, as I believe it was impossible for anyone to do so, but I believé it was possibly four to seven miles an hour. I figure that a common horse would travel probably four miles an hour, and I was gaining very slowly on this team. I couldn’t be going very much over four miles an hour, but I was going just a little faster than the team. “Before the accident it had rained hard that day, and I had been on the same car all that morning. The brakes were good so far as I know — in good condition, and had been working satisfactorily. The power was good, and the car generally was in good condition. “At the time I saw the motor truck approaching I did not see Mr. Griewski on the street. There was no one on the street that I could see. I could not say exactly what distance the car traveled after I applied the brake before it came to a stop. It was approximately six to eight feet. It would be hard for anyone to say.” Witness Ohlin gave expert testimony as follows: “I am familiar with the Bessemer car. It is equipped with an air brake. When that car is moving at about six miles an hour on a level track with a dry, clean rail, it can be stopped within from four to six feet, after the full force of the air is applied. Moving at the same rate and the same brake applied on a wet rail, and on a level track, it could be stopped in from five to seven feet, or probably a little better. If the track is sloping it may take more.” No testimony was introduced in contradiction of that just quoted. Indeed plaintiff’s argument in favor of an affirmance of the judgment is based upon its truth. We have then a situation in which a heavy interurban car is moving on a wet rail on a down grade. Plaintiff’s decedent enters the zone of danger at a point about 12 feet in front of the car. An appreciable time must elapse before the brain can act upon the body; a further appreciable time must elapse during which the muscular movement of the body per — 18 — forms the necessary functions; in applying the air some fraction of a second doubtless is necessary before “the full force of the air is applied.” We do not think it possible, under the facts in this case, for the doctrine of subsequent negligence to find application. No case has been cited, and we apprehend none can be found where the failure to act during a period of at most a single second has been held sufficient to permit the jury to find that the defendant in the exercise of reasonable care might have avoided injury to the one placed in peril by his own negligence. A review of some of the well known cases upon this question will show that the doctrine has been applied only in cases where with the exercise of reasonable care the defendant could readily have avoided injury to the one in peril. In the case of Montgomery v. Railway Co., 103 Mich. 53 (29 L. R. A. 287), it is said: “It is settled that, when one attempts to cross in front of an approaching train in plain view, he takes his chance of being injured, and cannot complain. * * * In the present case it is conceded that Grinnell was careless, and, but for the gross carelessness of defendant’s servants charged in the declaration and proved on the trial, he could not recover. It is quite a different case than where one attempts to cross in front of the car.” In Battishill v. Humphreys, 64 Mich. 514, the peril of the child was apparent for a distance of 492 feet, a sufficient distance as this court found to enable the train going three miles an hour to have been stopped before injury to the plaintiff. In Bladecka v. Electric Co., 155 Mich. 253, plaintiff’s position and actions were apparent to the defendant’s agent for a distance of 250 feet.- The street car was being operated at a very low rate of speed wholly under control and yet it was permitted by de — 19 — fendant’s agent to overtake and collide with plaintiff’s rig. In the case, of Calvert v. Railway, 202 Mich. 311, defendant’s agent noticed plaintiff’s attempt to cross in front of him at a point more than 90 feet from the point of the accident. It was demonstrated that the car could have been stopped within a distance of.50 feet, indeed it was stopped within such distance after the regular motorman took charge of the instrumentality. In the case of Fike v. Railroad Co., 174 Mich. 167, it appeared that plaintiff’s predicament was apparent to defendant’s agent at a point more than 300 feet distant from the point of the collision. In Walter v. Railway Co., 191 Mich. 181, a distance of 700 or 800 feet intervened between the car and the point where the horse jumped upon the tracks, and it appeared from the testimony that, allowing all necessary time in which to have stopped the car, there remained a clear distance of 150 feet. Similar cases where the doctrine has been applied are Hibbler v. Railway, 172 Mich. 368; Weitzel v. Railway, 186 Mich. 7; Millette v. Railway, 186 Mich. 634. In the discussion of the entire question defendant through its agents must be held to the exercise of reasonable care from the instant the plaintiff’s decedent placed himself in a position of peril. The testimony of the motorman indicates that in fact he did not see plaintiff’s decedent until he was directly in front of the car only two or three feet distant, but assuming that he was guilty of negligence in failing to observe decedent as he entered the zone of danger, no greater burden is cast upon the defendant than it would have been obliged to sustain had its agent actually seen decedent at the instant of his entry. His failure to act during the lapse of a fraction of a second or at most a single second is not in our opinion such a — 20 — failure as would warrant the invocation of the doctrine of subsequent negligence under the authorities of this State. The judgment is reversed without a new trial. Moore, C. J., and Steere, Fellows, Stone, Bird, and Sharpe, JJ., concurred. Justice Kuhn took no part in the decision.