It was not error to submit the question of contributory negligence to the jury. In the Rosencranz Case, 244 Mich. 137, relied upon by Mr. Justice WIEST as controlling, the accident occurred *Page 66 in the daytime when plaintiff drove onto the fourth track of a four-track railroad right of way, having crossed three of the tracks. He made an observation before entering upon the first track, but did not maintain any proper care and caution thereafter. Although his vision was obstructed by cars standing on the third track, he made no further observation in either direction before driving onto the fourth track. So far as the opinion discloses, he did not look or listen again after he made his first observation. This was not the situation in the case at bar.
I do not agree that it was the duty of the driver of the truck in the case at bar, under the circumstances shown by the record, to stop his truck, or get out and make observation, before crossing the spur track. No arbitrary rule of law can be laid down to decide cases of this sort. Each depends on its own circumstances, and a clear understanding of this case requires a more complete statement of plaintiff's proofs. They must be taken as true.
The accident occurred after dark. When the driver approached the railroad tracks, he stopped with other vehicles to allow a freight train to pass on the main line. There was a watchman at the crossing. When the freight train passed, the watchman signaled the traffic to go forward. The driver of this truck started up, crossed the main line and 3 or 4 sets of spur tracks at 10 miles per hour. Between the last set of spur tracks thus crossed and the easternmost spur track, there was a distance of 50 or 75 feet. The truck traversed this distance at the same rate of 10 miles an hour. Before the truck got within 5 to 8 feet of the spur track in question, the driver and his two passengers looked left and right, saw no engine or train, saw no headlight, received no warning, heard no bell or whistle. To the right, their vision was obstructed by a trailer that was located in the Chevrolet property about two feet *Page 67 from the fence. The lights on the factory buildings located some distance from the highway were lit. The crossing was unguarded. The driver's line of vision was obstructed from seeing the approaching engine that came out of the Chevrolet plant yard; the engine came out of the yard, gave no warning of its approach, and had no headlight, no bell ringing, no noise to warn of its approach. The driver saw the engine when he was about 5 to 8 feet from the nearest rail, tried to avoid a collision, swerved to the left, but was struck by the engine.
Was it the duty of the driver to stop his truck, loaded with a ton of coal, perhaps get out of his truck, before proceeding to cross the spur track? The driver, as well as his passenger (plaintiff herein), looked, listened, before attempting to cross the spur track. There was nothing to challenge their attention to the approaching engine. The only further precaution would have been to stop, although there was no apparent reason for doing so, except the obstruction to vision. I think that mere obstruction to vision did not require as a matter of law that the driver of the truck stop before attempting to cross the spur track at 10 miles per hour. The court instructed the jury that the question whether the driver of the truck and his passenger (plaintiff herein) used the care and caution that an ordinarily prudent man would have used under the circumstances was for the jury to decide. I do not concur with Mr. Justice WIEST in holding that the plaintiff was guilty of contributory negligence as a matter of law.
Quoting from decisions is of little aid in deciding cases of this nature. Each must depend upon its own facts and circumstances. However, I believe this case comes within the purview of those recent cases where this court has held that contributory *Page 68 negligence is a question of fact for the jury where reasonable opinions may differ as to whether the driver did use the care and caution that an ordinarily prudent man would have used under like circumstances. For recent decisions adhering to that view in motor vehicle-railroad crossing accident cases, see Spenclay v.Railway Co., 285 Mich. 421; Rogers v. Railroad Co.,289 Mich. 397; Gaffka v. Railroad Co., 301 Mich. 383; Jones v.Railroad Co., 303 Mich. 114; Fisher v. Railroad Co.,306 Mich. 95.
It was not error to submit the issue of contributory negligence to the jury. The question of defendant's negligence, and whether it was the proximate cause of the injury, was also properly submitted to the jury. As to the only other question urged for reversal, the defendant cannot successfully complain because the jury found in its favor as to the other plaintiff, who has not appealed from an adverse verdict as to him.
Judgment affirmed, with costs.
NORTH, STARR, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred with BOYLES, C.J. *Page 69