BEAGLE v. PERE MARQUETTE RAILROAD CO. 1. RAILROADS CONTRIBUTORY NEGLIGENCE-PERSONAL INJURIES CROSSINGS-DUTY TO LOOK AND LISTEN. Plaintiff was a woman 64 years of age who had resided immediately adjoining defendant's track near a crossing. She was familiar with the crossing and custom of the trains which passed there. A freight engine usually detached itself from its train and stood near the crossing until one of defendant's passenger trains had passed, about the middle of the day. Approaching the crossing while the passenger train stood upon and across it, she received a signal from the fireman of the freight engine to pass across the track in front of the standing engine. As she did so, she perceived a passenger on the train that was just starting on the main track making some signal which she misinterpreted and stepped backward in front of the engine which plaintiff claimed started to move without ringing the bell or signaling. She failed to look and did not observe that the engine had started and was struck by it. Held, that it was the plaintiff's duty to observe the surrounding situation before she returned upon the track which she had crossed and that her contributory negligence barred a recovery.1 2. SAME GENERAL RULE. Before a pedestrian is entitled to enter upon a railroad track or similar place of danger, or attempts to remain upon the track, it is his duty to assure himself that it is safe so to do, and failure to take this necessary precaution is contributory negligence per se. KUHN, BIRD, and MOORE, JJ., dissenting. Error to Genesee; Wisner, J. Submitted June 12, 1914. (Docket No. 39.) Decided January 4, 1915. Rehearing denied April 28, 1915. 1 1 On the question whether the failure to give customary signals at a railroad crossing excuses the nonperformance of the duty to look and listen, see note in 3 L. R. A. (N. S.) 391. 184 Mich.-2. Case by May Beagle against the Pere Marquette Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error. Reversed. Bills, Parker, Shields & Brown (Carton, Bray & Stewart, of counsel), for appellant. Henry R. Rathbone and Homer J. McBride, for appellee. BROOKE, C. J. The following facts are undisputed on this record: The plaintiff, a woman in the prime of life and in the full possession of all her faculties, had lived immediately adjoining the crossing at which she was injured for a period of a year and a half. She was familiar with the crossing and had occasion to use it with great frequency. She knew the number of tracks crossing the street at that point and their uses. The accident occurred in the middle of the day, and therefore in broad daylight. She knew that the freight engine, which had detached itself from its train and stood upon the crossing a few feet (she says 10) south of the sidewalk upon which she was proceeding must wait in that position until the south-bound passenger train had cleared the main track. Her intimate knowledge of the movements of the passenger train and the engine are indicated by the following testimony: "Q. You would frequently see trains, a freight train, pull in on the side track, the same as this one did? "A. Yes, sir; I have. "Q. At this time of day? "A. Yes, sir. "Q. You have seen the engine come up near Second street and stop? "A. Yes, sir. "Q. That would be right opposite your window, wouldn't it? "A. Yes, sir. "Q. And wait for that passenger train to go by? "A. A great many times. "Q. A great many times? "A. Yes, sir. "Q. This same passenger train you speak of you saw on this day? "A. That 1:05 train. "Q. Then the engine would go up on the side track and over onto the main line and take water? "A. Yes, sir. "Q. Then get back and couple on its train and go on? "A. Yes, sir. "Q. And that happened up there on this 1:05 train time, it would always stand there until the 1:05 train cleared on the main track? "A. Yes, sir. "Q. That was the regular movement of trains there? "A. Yes, sir. "Q. You knew, also, that when the 1:05 passenger train pulled by the crossing this engine always started up? "A. Always." The south-bound passenger train stood at the station and obstructed her passage over the main, or easterly, track. Approaching from the west, she crossed the side track and drew near to the passing track upon which the engine, which had been detached from the freight train, stood a little south of the walk she was traversing. The distance between the side track and the passing track is 19 feet. The distance between the passing track and the main track, upon which the passenger train stood, is 31 feet. Nearing the engine, she testifies that she received a signal from the fireman inviting her to cross in front of the engine which was not in motion. This she started to do, and had nearly crossed the track, which is only 4 feet 811⁄2 inches wide, when, according to her testimony, she noticed a person on the passenger train, which was pulling out, make a motion. This motion she describes clearly as a beckoning motion. But instead of stepping forward in obedience to the motion, through some misinterpretation, she stepped backward and remained standing an instant or two upon the passing track immediately in front of the engine. She testifies clearly that had she continued going forward, instead of stepping backwards, she would have reached a place of safety on the strip 31 feet wide between the two tracks. She testifies equally clearly that she stepped back upon the passing track and in front of the engine without looking to see whether or not the engine remained stationary. In order to clearly demonstrate this statement of fact, I subjoin an excerpt from her testimony given on cross-examination: "Q. You knew this engine or this passenger train could not strike you unless you were on the track, didn't you, Mrs. Beagle? "A. No answer. "Q. What; didn't you know that? “A. Why, I knew it; yes, sir. "Q. You knew if you went across the second track, between that and the third track, that you would be in a place of perfect safety, didn't you? "A. I did not think of it. "Q. Weren't thinking of your safety at that time? "A. Why, certainly I was thinking of my safety; that is why I went across when the fireman motioned to go across. I thought he was placing me in a place of safety. "Q. What say? "A. I supposed he was placing me in a place of safety. "Q. You knew where a safe place was without his telling you? "A. I had not time to get clear over when I was motioned to step back again. "Q. Why not? Well, you did stop and step back? "A. Certainly, on the second crossroad there. "Q. Now, you knew, did you not, that right in front of you, if you had continued going ahead instead of stepping back there, that the place was perfectly safe for you? "A. Yes, if I went ahead. "Q. You knew that? "A. Yes. "Q. Now, you appreciated it at the time? "A. Yes, but I thought you meant "Q. Yes? "Mr. Rathbone: I want her to complete her answer. I submit the witness is entitled to finish. What was that, Mrs. Beagle? "Q. Meant what? "A. Meant the motion I got from the passenger train I was to step back, go back or something, some danger or something I did not know what; that is all I know about it. "Q. You knew that right in front of you, did you, there was no danger? "A. Well, I did not know what it meant. If I had I would not have stepped back into danger; I was not there for that purpose. "Q. I appreciate that, but, Mrs. Beagle, didn't you know where a safe place was on that crossing at that time? "A. If I had got over on that side "Q. Answer my question. "A. Yes, that would be a safe place. "Q. You knew it at the time, didn't you? "A. Yes, I knew it at the time. "Q. That answers the question. We have finally got that settled. Then if you had gone into a place that you knew was safe you would not have been injured, would you? "A. No, if I went over there. "Q. And the fireman had nothing to do with your stopping the second time, did he? "A. Not the second time. "Q. What? "A. No, I could not say as he did. "Q. And you were going to step into a place of safety? "A. Yes, sir. |