Beagle v. Pere Marquette Railroad

Kuhn, J.

(dissenting). This is an action for injuries received in a railway crossing accident in the city of Flint at the intersection of Second street with the defendant’s line of railway. At this point there are three tracks, the one farthest to the east being the main track, the one in the middle, about 24 feet distant, being the one on which the accident occurred.

On December 2, 1911, at about 1 o’clock p. m., a freight engine was standing across Second street on the middle track, its pilot about 10 feet south of the sidewalk on the north side of Second street, waiting for the regular passenger train to pass so that it might go over to the main track and take water. The plaintiff, who lives near the crossing and had crossed the tracks there many times, was going along Second street and walked onto the track on which the engine stood. It is her claim, supported by her testimony, that the fireman on this engine motioned for her to go ahead, and that as she was crossing the track some one on the passenger train, which was just then passing on the main track, motioned to her. Interpreting this as a warning, she stopped and stepped back, then looked around and saw the freight engine moving toward her, without ringing a bell or giving any other warning, and almost upon her, and before she could get clear of the track her left foot was caught and severed. It is further her claim, supported by testimony of other witnesses, that it was the custom of *26the defendant for many years to ring bells on its engines standing on or close to Second street before starting, to warn persons who were passing in front of such engines, and that she knew of this custom and relied upon it on this occasion in crossing as she did.

The case being submitted to a jury, a verdict in the sum of $14,000 was found for the plaintiff, and judgment was entered thereon. A motion for a new trial made by defendant was refused. The case being removed to this court by writ of error, 164 assignments of error are urged. The following are the reasons urged by defendant’s counsel for a reversal of the case:

“(1) The plaintiff was guilty of contributory negligence as a matter of law.

“(2) The variance between the pleadings and the proofs.

“(3) The negligence of thé defendant, if any, was not the proximate cause of the accident.

“(4) If the defendant was guilty of any negligence, the plaintiff was guilty of concurrent negligence which contributed to her-injuries.

“(5) The verdict was against the weight of the evidence.

“(6) The verdict was excessive.

“(7) The suit was prosecuted in violation of the law.

“(8) The court erred in the charge as given.

“(9) The court erred in the admission and exclusion of testimony.

“(10) The improper argument of plaintiff’s counsel to the jury.”

The principal question argued in the briefs is whether the plaintiff was guilty of contributory negligence as a matter of law. It is claimed by defendant and testified to by witnesses that she stopped on the track and waited there for the passenger train to pass, and in doing this that she selected a dangerous position when there was sufficient room for her to have *27stopped on either side of the track; and also that she knew from experience that the engine would start up when the passenger train went by.

The question of plaintiffs contributory negligence, Tinder the decisions of this court, should be submitted to the jury when the testimony is conflicting, or when -candid and intelligent men might reach different conclusions upon the question. Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581); Haines v. Railway Co., 129 Mich. 475 (89 N. W. 349); Welch v. Railroad Co., 147 Mich. 207 (110 N. W. 1069); Amanta v. Railroad Co., 177 Mich. 280 (143 N. W. 76). See, also, Atchison, etc., R. Co. v. Wilkie, 77 Kan. 791 (90 Pac. 775, 11 L. R. A. [N. S.] 963, and note, 127 Am. St. Rep. 464, 15 Am. & Eng. Ann. Cas. 731), and Monroe v. Railway Co., 129 Mich. 309 (88 N. W. 888).

The testimony of the plaintiff was that, relying ■upon- the custom of the defendant to give warning, and because of the invitation from defendant’s fireman to cross, she thought it was safe for her to do so.. Whether she was justified in relying upon this custom, in view of her admitted knowledge that the freight engine usually started up at about the time the passenger train went by, it seems to us to be a question for the jury. Whether or not her act in crossing was that of an ordinarily prudent person, tinder all the circumstances, was a question for them to determine.

In McWilliams v. Mills Co., 31 Mich. 274, it was said, in a case not dissimilar to the instant case:

“A passenger along the sidewalk of a public street has a right to expect some warning before any sudden movement of this kind, and there should be very plain proof of negligence to bind him under such circumstances.”

And in Davis v. Railroad Co., 142 Mich. 382 (105 N. W. 877), where the deceased stood on the track *28with his back to a standing caboose for several seconds before it was backed down upon him without warning, and the trial court directed a verdict on the ground of contributory negligence, the judgment was reversed on the ground that the question of contributory negligence should have been submitted to the jury. The court said:

“A passenger is not required by the law to hurry across a track in front of a car standing detached in a public highway, with nothing in his sight to indicate its immediate movement. * * * A delay for a little time, when acquaintances meet upon a sidewalk, to talk, is not per se negligence under such circumstances. Parties have the right to assume that the railway company will give them warning at such places before moving the car in their direction.”

Error is assigned because of the refusal of the trial judge to allow the defendant to amend its plea as provided in section 1139, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12557), so that it might be shown that the demand upon which this action was founded had been bought and sold or received for prosecution contrary to law, and in violation of the statute (section 1136, 1 Comp. Laws [5 How. Stat. (2d Ed.) § 12554]). It is claimed that plaintiff’s attorney and the plaintiff made an agreement by which the attorney was to advance funds for the purpose of carrying on the litigation, and that this practice is a species of champerty and therefore illegal. This question is decided adversely to defendant’s contention in the recent case of Lehman v. Geer, 180 Mich. 362 (147 N. W. 628).

A reading of this record does not convince us that the verdict is so against the overwhelming weight of the evidence as to warrant us in overruling the decision of the trial judge in refusing a new trial on that ground. See Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), and cases cited therein.

*29We are not impressed that the verdict was execessive. The plaintiff, of the age of 44 years, prior to the accident, was a healthy and strong woman, doing the housework for a family of six. After the accident her left leg was amputated four or five inches above the knee. She was in the hospital ten weeks, where she was operated on three times. She has suffered great pain, and at the time of the trial she was still suffering pain, and was unable to wear an artificial limb because of her inability to control it. She is able to do but little housework, and has become a nervous woman, having difficulty in sleeping.

In the case of Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592), where a verdict of $25,000 was reduced by this court to $17,000, the plaintiff lost her left foot, the amputation being above the ankle, and her left arm was amputated about the middle third, and there was a scalp wound and shock to the nervous system. Adopting the rule announced in that casé, that it is the object of the law to compensate the plaintiff for all the injury sustained and not to provide the plaintiff with a competency or fortune, considering the permanent crippled condition of the plaintiff, her great suffering in mind and body, the destruction of her ability to labor, we are not prepared to say that the verdict in the instant case should be disturbed on the ground of its being excessive.

The other claims of error relied upon by defendant have had our careful consideration. We are satisfied that the case was submitted to the jury in a proper charge, clearly outlining the questions in issue, and that no prejudicial error was committed on the trial in the rulings of the court or argument of counsel.

The judgment should be affirmed.

Bird and Moore, JJ., concurred with Kuhn, J.