Mulvihill v. Detroit United Railway , 231 Mich. 123 ( 1925 )

From the curb of the street to the first rail of the track was 12.75 feet, and to the overhang of the street car a little over 11 feet. The child leaving the curb ran into the street vigorously, quickly, so quickly that his mother, a young vigorous woman, unhampered in movement, though close to the child, was not able to catch him. He reached the point of overhang in an instant, a second or two. He was caught by the end of the fender and thrown under the car, which was stopped just as the wheel reached his body. The flesh was torn, but no bones were broken.

The motorman first saw the child as he left the curb. The overwhelming weight of the evidence is that at this instant the street car was distant approximately 30 to 35 feet proceeding at about 10 to 12 miles per hour. In that brief time, the motorman sounded the gong, shut off the power, applied the brakes, put the car in reverse, and then turned on the power. He stopped, according to the great weight of the evidence, in about a car length. He did not sand the rails nor lower the fender. The undisputed evidence is that sanding would not have helped, the rail being dry. And it is undisputed that the motorman did not have time to do more than he did. There was sudden emergency, a brief instant for action. For the mind to perceive the danger and the need for action, for the muscles to respond to the direction of the mind, and for the machinery to respond to the muscular movements, appreciable time is required.Griewski v. Light Co., 209 Mich. 10. There can be no just criticism of what the motorman did or did not do in that brief instant and no negligence can be predicated upon his conduct in this regard. Coessens v. Railway, 136 Mich. 481.

An inference of negligence can be drawn from the mother's testimony. She places the car as 110 feet distant instead of about 30 or 35 feet. If she is right, then the car, to reach the point of impact in that brief time, must have been traveling at a very high and dangerous rate of speed. But this inference is overwhelmed by the other evidence in the case.

The verdict is against the great weight of the evidence. Judgment should be reversed, and a new trial granted.

SHARPE, STEERE, and FELLOWS, JJ., concurred with CLARK, J.