These two railroad and highway intersection cases were consolidated and tried as one. The jury rendered a verdict for Roy Hart, the driver of the automobile involved, in the sum of $175 and for William Strew, his passenger, in the sum of $1,000. Seasonable motions were made by defendant for directed verdicts; subsequently the court granted defendant's motions for judgment non obstante veredicto from which plaintiffs appeal.
The accident out of which the lawsuits arose occurred where a spur track of defendant's railroad crosses Marquette avenue in Bay City. On November 10, 1934, sometime after 10 o'clock in the evening, plaintiff Hart, who was unacquainted with the city, was driving his Ford coupe northerly on Marquette avenue. Riding with him was his uncle, William Strew. Defendant's train was approaching this crossing from the northeast, at an angle with the road of about 20 degrees. Several oil tank cars were ahead of the engine which was moving them towards the intersection at a speed of about 9 or 10 miles an hour, but before reaching Marquette avenue, the train slowed down to about two or three miles per hour. Brakeman Greanya, who was riding the forward car with Brakeman Green, both of whom were carrying lighted lanterns, got off the train and ran ahead to the middle of the crossing where he remained, swinging his lantern across the highway. He testified that he saw plaintiff's automobile about 400 or 500 feet away and said that when he discovered it was not going to stop, he jumped back and behind the tank car in order to avoid being struck by the automobile. Both he and Green gave an emergency stop signal to the engineer and the testimony of the railroad crew shows that the train did stop within a distance of four or five inches. *Page 345
Plaintiffs say they knew nothing of the proximity of the train, saw no signals and heard neither bell nor whistle, and that Hart's auto was struck by the tank car. However, the members of the train crew and disinterested witnesses testified that the bell was ringing, that the lanterns were visible, and that Hart drove his automobile into the end of the tank car. Strew was injured and for sometime suffered from numbness near the left eyebrow and from double vision. His doctor believed at the time of the trial that he might eventually recover his normal sight. The automobile was demolished.
An ordinance of Bay City requires the continuous ringing of a locomotive bell as trains approach a crossing, but forbids the sounding of whistles within the city, "excepting necessary brake signals and for such other signals required by law as shall be absolutely necessary to prevent injuries to person and property."
The trial judge held that judgments should be entered for defendant because of plaintiff Hart's contributory negligence and because of the imputation of this negligence to his passenger, Strew.
Three questions are raised on appeal, two of which are not argued in the briefs and therefore must be considered as having been waived.
However, for the benefit of the profession, we will say that the question pertaining to the claim that the court lost jurisdiction to enter a judgment non obstante veredicto by its failure to make a decision on defendant's motion for more than 60 days after its submission, must be answered adversely to appellant because of our holding in Stepanian v. Moskovitz,232 Mich. 630; a discussion of this question is given on pages 638 and 639 of that opinion.
The remaining and controlling question, according to appellants' brief, is that of plaintiffs' contributory *Page 346 negligence. But there must be proof of negligence on the part of defendant before there can be any question of contributory negligence on the part of plaintiffs.
The negligence asserted in appellants' brief "consisted of defendant pushing its tank cars across Marquette avenue on a dark night without the use of lights, bell or whistle." Plaintiffs' proof on this subject is entirely negative. Neither of the plaintiffs was aware of the existence of the crossing until the collision occurred, and while they testified that they were listening, their answers indicate that they were not listening for anything in particular. Each member of the train crew and disinterested witnesses affirmatively stated that the headlight of the engine was lighted and while the tank cars were higher from the ground than the headlight, the light still could be seen; they also testified that the engine bell was ringing and that the brakeman on the first car and the one who guarded the crossing were signaling with their lanterns.
As indicated in the annotations found in 66 A.L.R. 1538,et seq., we have repeatedly held:
"That where the testimony of witnesses on the part of the plaintiff does not show that they were listening or otherwise giving heed or attention to an oncoming train, testimony that they did not hear the signals does not take the case to the jury, where there is positive testimony by other witnesses, some of them disinterested, that signals were given.Stewart v. Railroad Co., 119 Mich. 91; Britton v. Railroad Co.,122 Mich. 359; Tuttle v. Briscoe Manfg. Co., 190 Mich. 22 (12 N.C.C.A. 909); Lambert v. Railway Co., 209 Mich. 107."
Defendant says, and we agree, that the Lambert Case, supra, is a leading one on the subject. We *Page 347 repeat a quotation from page 113 of that opinion, which is also found in Moreau v. Grandmaison, 220 Mich. 238:
"This analysis of the cases shows that in those relied upon by the plaintiff it was held that where the witnesses testified that they were listening, their attention was upon the train, its coming was upon their minds and they were paying heed to it, that then their testimony makes a case for the jury. This upon the theory that if they were listening, giving the train heed and attention, the probabilities are they would have heard the signals if they had been given. On the other hand the cases relied upon by the defendant's counsel hold that where the testimony does not show either that the witness was listening or otherwise giving heed and attention to the train, then testimony that he did not hear the signals does not take the case to the jury against positive testimony that the signals were given. This is upon the theory that it cannot be said that there is a probability that one not listening or giving any heed or attention to the train would have heard the signals if given."
The evidence does not show any negligence on the part of defendant. Therefore we affirm the judgment for defendant without determining the question of plaintiffs' contributory negligence. We content ourselves with reference to the following applicable authorities on contributory negligence which were also cited by the trim judge: Haney v. Troost,242 Mich. 693; Stone v. Railway Co., 248 Mich. 538; Richman v.Railway Co., 254 Mich. 607; Angstman v. Wilson,258 Mich. 195 (31 N.C.C.A. 1); Depotty v. City of Detroit,258 Mich. 657; Gardinear v. Railway Co., 265 Mich. 286.
The judgment for defendant is affirmed in each case, with costs. *Page 348
WIEST and SHARPE, JJ., concurred with BUSHNELL, J.
FEAD, J., concurred on ground plaintiffs were guilty of contributory negligence as a matter of law.
NORTH, C.J., concurred with FEAD, J.