Groves v. Grand Trunk Western Railway Co.

Fellows, J. (after stating the facts). Should the court have directed a verdict for the defendant on the ground of plaintiff’s contributory negligence? We think this question must be answered in the affirmative. If plaintiff looked to the right when 2 rods back from the first track and about 50 feet back from the point of collision, he must have looked indifferently, carelessly, as the motor car was then coming from the north. The section hands testify that they “hollered” to him and this is corroborated by one of plaintiff’s witnesses who heard them “screaming” 20 rods away. Plaintiff testifies that he did not hear them. But lay [412] ing this aside, for a distance of about 50 feet plaintiff drove his machine at not faster than 5 miles an hour, and could have stopped it in 6 or 8 feet, on a bright clear day with an unobstructed view, onto a railroad crossing, without once glancing to the right. The case is not like those cases where the traveler is. put in a position of peril through the negligence of the defendant and must choose between two courses; nor is it like those cases where the traveler looks and sees the car coming and prudently estimates that he can safely cross;.nor is it a case of an obstructed crossing. In the case of Gillett v. Traction Co., 205 Mich. 410, Mr. Justice Kuhn quite fully reviewed the authorities, and, speaking for the unanimous court, said: “It was his duty, under the circumstances, not only to look, but to look just before entering the danger zone, so as to make sure that it was safe to cross the track.” And in Colborne v. Railway, 177 Mich. 139, Chief Justice Steere, speaking for the court, said: “He could and should have made sure of the safety of proceeding, by looking just before entering upon the track, and at such a point that he could stop his machine if necessary in order to avoid a collision. This rule should be as strictly applied to an automobile as to a pedestrian, and the reasons for its application are more impelling.” See, also, Manos v. Railway, 168 Mich. 155; Malta v. Railway Co., 69 Mich. 109; Kwiotkowski v. Railway Co., 70 Mich. 549; Miller v. Railway, 200 Mich. 388; Strong v. Railway Co., 156 Mich. 66; Pershing v. Railway Co., 206 Mich. 304; Hardy v. Railway Co., 208 Mich. 622. But it is said that there was a curve in the track at the left so as to obstruct plaintiff’s vision and he was looking in that direction. In Otto v. Railroad Co., 189 [413] Mich. 463, it was said by this court, speaking through Mr. Justice Person : “The fact that the view to the south was obscured was not a sufficient reason for his failure to cast his eyes again to the north before going upon the track.” The case was not disposed of in the court below upon the theory of discovered or subsequent negligence. So far as this record discloses no claim.was there made of subsequent or discovered negligence or gross negligence. We therefore cannot consider the question. At the time of the accident the defendant was under Federal control. Its property was being operated by the director general of railroads for the government. In Peacock v. Railway Co., 208 Mich. 403, we fully considered this situation and there held that the company was not liable for the negligent acts of the agents of the director general of railroads and dismissed the case as to the railway company. But as the trial there had been conducted without error except as to this question we permitted an amendment substituting the director general of railroads as defendant. In the instant case the judgment must be reversed for the error pointed out. The railway company must also be dismissed. If the plaintiff desires to amend he may make such application to the trial court within 30 days, otherwise the reversal will be without a new trial. Reversed and remanded for proceedings not inconsistent herewith. Defendant will recover costs of all courts. Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.