Plant v. Heraty , 131 Mich. 619 ( 1902 )

Moore, J.

The plaintiff, a farmer, while driving north on Saginaw street, crossing Center street, in Bay City, was struck by a street-railway car. This suit was brought to recover damages for the injuries he received. After the witnesses for plaintiff had been sworn, and before any proof had been offered by defendants, the circuit judge directed a verdict in favor of defendants. The case is brought here by writ of error. ■

The city ordinance, under which the street cars were allowed to run, required the cars to be equipped with a suitable alarm bell, which was to be rung at least 50 feet from each street crossing as the car approached the crossing. Center street runs east and west. Saginaw street runs north and south. It is the claim of plaintiff that he was driving a gentle horse attached to an open, light wagon, in which he was sitting upon an inverted bushel basket; that he stopped near where the south sidewalk on Center street crosses Saginaw street, to enable a person who was riding with him to alight; that, before starting his horse north, he looked and saw one of defendants’ cars about 100 feet west of Saginaw street, standing still; that at the same time he saw a suburban car to the east, which was coming west, ringing its bell; that, believing he had ample time to cross Center street, he started his horse for the purpose of doing so; that for a moment he doubted whether he had time to pass ahead of the suburban car, and slackened the pace of his horse, but concluded he had ample time to do so, and urged it forward; that his attention was wholly occupied by the suburban car after he started to cross the street, and that, if the motorman had been observant, he would have noticed the fact. The plaintiff crossed the track upon which the suburban car was running safely. In the meantime the car which was standing west of Saginaw street started east, and it is the claim of plaintiff the motorman gave no warning of the approach of the car, and that plaintiff had no reason to suppose he was in danger from it until his wagon was struck by it, and he was thrown as high as the car, and suffered very severe injuries.

If the motorman ran his car east under the circumstances, and without any warning being given by him, as indicated by the testimony of the witnesses for plaintiff, he was negligent, and the plaintiff should be allowed to recover unless he is precluded from doing so by his own act. The case is not free from doubt. It is near the border line. We think, however, the testimony was for the jury, and that it cannot be said, as a matter of law, that plaintiff was guilty of such negligence as to preclude him from recovering. His attention was occupied more or less by the approaching suburban car, which was giving warning of its approach by the ringing of its bell. Before he started across the street he saw that the car to the west was standing still. It was the duty of the person in charge of it to signal its approach to the crossing by the ringing of the bell. The testimony discloses plaintiff’s hearing was not impaired. The motorman could see the plaintiff, and could see that his attention was occupied by the suburban car. We think the case falls within the following cases: Rouse v. Railway, 128 Mich. 149 (87 N. W. 68); Edwards v. Foote, 129 Mich. 121 (88 N. W. 404); Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703), and the cases cited therein.

Judgment reversed, and new trial ordered.

Hooker, C. J., and Montgomery, J., concurred with Moore, J.