I am not in accord with the foregoing opinion. Inasmuch as the motion non obstante veredicto was granted against plaintiffs, we must view their testimony in the most favorable light. There was ample testimony to make the issues of negligence and contributory negligence jury questions.
Witnesses are agreed that the collision occurred on a dark night and that the street was not illuminated. It did not occur at a railroad station nor at a crossing where there was a series of tracks, but happened on a side track which was flush and even with the street without any elevation. The testimony is not contradicted that the only warning sign was an old T-shaped wooden sign some 14 feet in height facing in the opposite direction from which plaintiffs were coming. The sign was off the road up near the sidewalk on the left side of plaintiffs. It is also uncontradicted that plaintiffs were wholly unfamiliar with the road and did not know of the side track. There was further testimony on the part of plaintiffs that the night was misty as well as very dark; that plaintiff was driving from 20 to 25 miles an hour and that a tank car struck the car of Hart, and his car did not run into the tank car. The photographic exhibit of the car taken after the collision indicates that Hart's car was struck on the side near the front end, the glass of one headlight, one of the front fenders and the *Page 349 bumper apparently being uninjured. There is further testimony that the headlight of the locomotive was facing in the opposite direction from the street. There is no question but that it was in back of the tank cars which were being pushed across the street when the accident occurred and that the cupolas of the cars partly shut off the light.
There was ample testimony of a positive nature that the bell was not rung constantly in accordance with the city ordinance of Bay City, which was introduced into evidence. Witness Hart testified as follows:
"Q. As you approached the place where this collision happened, were there any rings of a locomotive bell?
"Mr. Macpherson: I object to that, asking for a conclusion. I do not mind him asking the witness what his sense of hearing registered, but to say a bell was ringing or not is purely a question for the jury.
"Q. Your hearing is good, is it not?
"A. It's supposed to be.
"Q. Are you familiar with the sound of a locomotive bell?
"A. Yes, sir.
"Q. How far can you ordinarily hear a locomotive bell ringing?
"A. Why, around where they are switching in the yard in the plant you can hear them sometimes 80 rods there, them bells ringing.
"Q. Under conditions as they were that night how far could you hear a locomotive bell ringing?
"A. I could have heard one ringing if there had been one ringing in that distance.
"Mr. Macpherson: I object to that.
"Mr. Leibrand: That is perfectly proper, if your honor please. *Page 350
"Mr. Macpherson: There might have been one and he not be listening to it.
"The Court: How far could he hear one under ordinary conditions as they were that night?
"Mr. Macpherson: If he had been listening.
"The Witness: A man could hear one three or four blocks.
"Q. As you drove along Marquette street within three or four blocks of the place where the accident occurred were you listening?
"A. Yes.
"Q. And was a locomotive bell ringing?
"A. No, sir.
"Mr. Macpherson: I will object to that as asking for a conclusion.
"The Court: Did you hear one?
"The Witness: No, sir. * * *
"Q. Now you said you were listening for a bell as you drove along there?
"A. No, I didn't say I was listening for a bell.
"Q. Didn't you say you were listening for a bell as you went along there?
"A. I was listening. You could be listening for anything.
"Q. What were you listening for?
"A. Well, for anything in particular. I had my mind on driving, of course.
"Q. What did you have particularly in mind?
"A. Well, you could listen for a car behind you, or somebody coming on the side street blowing a horn, or train or anything."
Witness William Essex, a wholly disinterested witness, who with his wife was driving immediately behind the car of plaintiffs, testified as follows:
"Q. Were you listening for any sounds or noises there might be?
"A. Nothing in particular, any more than I ever do; I always am cautious when I am driving. *Page 351
"Q. Whether or not you heard a bell, a locomotive bell ringing?
"Mr. Macpherson: I object to that as incompetent, immaterial and irrelevant, no evidence of negligence on our part. He said he wasn't paying any particular attention.
"The Court: He may answer what he heard or observed, if anything.
"A. I didn't hear no bell.
Mrs. Essex also testified that she did not hear locomotive bells ringing. William Strew, the other plaintiff, testified as follows:
"Q. As you approached the railroad crossing did you hear the ringing of any locomotive bells?
"A. No, sir.
"Q. Would you say whether or not any locomotive bells were ringing?
"A. If there had been a locomotive bell ringing, I would have heard it. * * *
"Q. What was the condition of your hearing prior to that accident?
"A. Good."
It is true that defendant produced witnesses who testified that bells were rung. One of these witnesses was a railroad man who had been in the switching service of another railroad for 23 years. However, a fair jury question was presented and it is not within our province on this appeal to weigh the evidence in order to determine whether the verdict was against the great preponderance of the testimony. When witnesses testify that they did not hear a bell, that they were unfamiliar with the road and that they could have heard a railroad bell ringing for three blocks if one had been rung, that their hearing was good, that they heard no locomotive bell ringing and did not know that there was a *Page 352 railroad track nearby, but that they were listening either for cars behind them or a car coming out of a side street blowing a horn or a train or anything, that the plaintiff Hart was listening because he was a cautious driver and that if a locomotive bell had been ringing he would have heard it, there was sufficient positive testimony at least to present a case for the jury.
There is conflicting testimony in regard to the light signals, there being some testimony that there were no lights whatsoever. This may be due partly to the fact that the entire accident happened within a second or two or possibly a fraction of a second. Plaintiff Hart was driving his car near the curb on the side of the road from which the train was coming. The testimony is that he was driving from 20 to 25 miles an hour. This would mean that he was going almost 30 feet in a single second. Notwithstanding the claim of one of the defendant's witnesses that the train came to a stop, the conductor states that it slowed down to 2 or 3 miles an hour. Even at that rate, it would only take a very few seconds for the train to emerge into the street. It was the claim of defendant that the switchman ran out with a lantern to give a signal, but, even if this is true, his arrival in the street must have almost immediately preceded that of plaintiff's car. Plaintiff Hart testified that no signal lights were given either on the street or on the tank car. Essex, a corroborating witness, stated that there was a light waved from the train, but none on the street. Defendant produced testimony to the contrary. Plaintiffs were interested witnesses, and Mr. and Mrs. Essex were not. The interest of many of defendant's witnesses was also shown. It is the province *Page 353 of the jury to weigh testimony that is conflicting and also to pass upon the credibility of witnesses.
We do not disagree with the law as set forth in the foregoing opinion, in which my brother refers to the case ofLambert v. Railway Co., 209 Mich. 107, and also the case ofMoreau v. Grandmaison, 220 Mich. 238. The latter case in the majority opinion very tersely states in a reference to theLambert Case that several witnesses testified that the crossing signal was given; others that they did not hear it, but not that they were listening. In the Moreau Case, both defendants swore positively that the horn was sounding and plaintiff did not testify that he was listening or giving any heed to what vehicles might be coming from behind.
In the instant case, we have positive testimony that the witnesses were listening and did not hear any bells rung. The courts have never held that witnesses, who were carefully listening and did not hear the locomotive bell rung, must also show by direct evidence the physical non-ringing of the bells.
The other cases cited refer to entirely different factual situations, some involving cars that were broken down and became obstacles in the road, or accidents that happened at railroad crossings where the parties saw or should have seen oncoming trains. We are bound by the verdict of the jury on the facts.
The judgment non obstante veredicto should be set aside and the case remanded for a judgment in accordance with the verdict of the jury. Plaintiffs should recover costs.
TOY, J., concurred with BUTZEL, J.
*Page 354POTTER, J., did not sit.