Ryan v. Detroit Citizens' Street-Railway Co.

Hooker, J.

The trial court directed a verdict for the defendant. We must therefore examine the record, to ascertain whether the case presented a question that should have been submitted to the jury. The action was for negligence, whereby defendant’s car collided- with the plaintiff’s vehicle, to his injury. The statement of facts, as given by the appellee, is that the plaintiff, an old man, was driving a horse and buggy west on the north side of *598 Jefferson avenue, in Detroit. There'is a double track for a street railway on this avenue, upon which trolley cars are run. When plaintiff reached First street, he attempted to cross the street-car track,.and was struck by the car. There was testimony that, standing at the intersection of First street, one can see a car from one to five blocks, according to the testimony of different witnesses. It is claimed, therefore, that the plaintiff was conclusively shown to have been guilty of contributory negligence. The plaintiff testified that he looked up to the point of the hill, about 75 or 80 feet, and saw no car, and thought that was far enough to look to make the attempt to cross safe. Counsel for the appellee cite four cases which are said to support their contention. They are Fritz v. Railway Co., 105 Mich. 50 ( 62 N. W. 1007 ); Borschall v. Detroit Railway, 115 Mich. 473 ( 73 N. W. 551 ); Doherty v. Railway Co., 118 Mich. 209, 213 ( 76 N. W. 377 , 80 N. W. 36 ); McCarthy v. Railway Co., 120 Mich. 400 ( 79 N. W. 631 ). Of these, some are cases where pedestrians walked upon a track, immediately in front of a car, under circumstances which made it impossible for them to have looked in the direction from which the car was coming, immediately before stepping upon the track, without seeing the danger. Such were the cases of Doherty v. Railway Co. and McCarthy v. Railway Co. In the case of Fritz v. Railway Co., the plaintiff, a milk vender, was driving along a street, and turned abruptly across the track, without looking to see whether it was safe or not, which he could not do, as the wagon was so covered as to prevent: In the Borschall Case, the driver looked both ways, and saw a car coming from the south, but saw none coming from the north. He backed out of the way of the north-bound car, and, as soon as it passed, drove on the track. It was held that, had he looked after the car passed, he must have seen the danger.

We have said that street railways have ordinarily the right of way over vehicles, and that the driver owes the duty of looking before going upon the track. But both *599 have rights upon all parts of the highway, and a driver is not obliged to wait until all cars in sight pass before attempting to cross. If he were, his progress would be slow. There is testimony in the case that the whole car could have been seen from the place where the accident occurred when it reached the top of the hill, which was two blocks away. The plaintiff stated that he looked to the point of the hill, and saw no car, and thought he could get across. He estimated the distance at 75 or 80 feet; others make it more. It was held in the case of Garrity v. Railway Co., 113 Mich. 369 ( 70 N. W. 1018 , 37 L. R. A. 539), that, when the circumstances are such that a driver may reasonably think that he has time to cross, it is not negligent to attempt it; and while, as we have seen, there are cases where it is conclusively shown that the attempt was necessarily negligent, there are others where the question is for the jury. It is unnecessary to repeat what is said in the Garrity Case, and sufficient to say that this case is within the rule there stated, and that it should have been left to the jury upon the questions of negligence and contributory negligence.

The judgment is reversed, and a new trial ordered.

Montgomery, C. J., and Moore, J., concurred with Hooker, J.