In the case of Bady v. Railway, 180 Mich. 380, Mr. Justice BIRD, speaking for the court, said: "It is gathered from the testimony of the plaintiff and his witnesses that the night in question was a dark and stormy one, that the car was being operated at a high rate of speed, without a headlight, and that no warning was given as it approached the intersection of the avenues. the avenues. It further appeared that there was no street light at the intersection. Under this state of facts, we do not think it should be said, as a matter of law, that plaintiff was not in the exercise of ordinary care in attempting to go across the track. That question was one of fact to be determined in view of all the circumstances by the jury. In determining the question, it was proper for the jury to consider to what extent the storm and darkness might have prevented him from discovering the car in season to avoid it, and it was likewise proper for them to consider to what extent the failure to have a headlight in the usual position on the car might have misled him, and also to consider whether his lack of appreciation of the danger he was in was due in any manner to the failure of defendant to do the usual thing and sound the gong as the car approached the intersection. "Notwithstanding the presence of all these conditions, as is urged by defendant, it would seem as though plaintiff ought to have seen or heard the car approaching if he took the precaution which he testified he did before attempting to go upon the track; but whether he did the thing which ordinarily careful and prudent men would do under similar circumstances is a question which is not within our province to deWavle v. Railways Co., 170 Mich. 81 (Ann. Cas. cide. 1914B, 149)." The facts in the instant case correspond very closely. In each case the injured person stopped and looked just before going upon the track. But there is one important difference. In the Bady Case plaintiff had but a single track to cross, while in the case at bar the accident happened on the farther of the two tracks in the street and deceased stopped to look only before going upon the nearer track. It is this fact which is relied upon by defendant's counsel as conclusively establishing negligence on the part of deceased. He says in his brief: * * * "It appears conclusively from the above that decedent made his observation to see whether or not it was safe to cross when at a point 2 feet north of north rail of west bound track-then proceeded to cross. * * * He therefore walked nearly 12 feet after making his observation-onto the tracks immediately in front of oncoming car, and was hit, without looking again—and that too on a stormy, sleety night, when according to the testimony of his witnesses it was dark-street lights out-7:30 at night. His observation may have been all right so far as the west bound track was concerned, * * * but unfortunately for him the east bound track was fraught with just as much danger. When there are double tracks upon the street, there are two danger and he can't escape the imputation of negligence in approaching the eastbound track by claiming he made the proper observation when approaching the westbound track." zones. * * * And again: * * * "The worst storm of the winter was raging. The city lights, according to defendant's witnesses, had temporarily gone out; it was snowing and sleeting; it was night time and one could not see as far as usual. All these factors would have some bearing on decedent's contributory negligence, as the care incumbent upon him in crossing the street would be commensurate with the unusual elements which he had to contend with. These obstacles then only increased the care which he should have used-not diminished it." While it is true that the increased peril rendered greater precaution necessary, it is also true that the confusion and bewilderment produced by the darkness and the storm introduces an element of uncertainty into the attempt to arrive at a judgment as to how an ordinarily prudent and careful man would have acted under the very unusual circumstances in which the deceased found himself. The precautionary measures which would at once suggest themselves in ordinary crossing cases, based on a lifetime's experience, might seem to one in decedent's situation of little value. He was beset with new and unusual perils. There was a driving wind with sleet and snow. The pavement was coated with ice. His range of vision in either direction was limited. If he ought to have had in mind the possibility of a car without a headlight suddenly looming out of the darkness, bearing down on him at a speed of 30 or 40 miles an hour, from which direction ought he to have expected it? Or why a street car more than a rapidly approaching automobile, without lights, hurrying in one direction or the other along almost any portion of the width of the pavement? If he had stopped a few feet north of the second track to look carefully to the west, might not that very delay and diverting of his attention towards that direction have resulted in a failure to escape an automobile or a street car from the east, which might have caught him as suddenly and without warning as the car which actually did appear from the west? He had no more reason to expect it from the one direction than the other. Or might not even such a slight delay have resulted in his being trapped in the "devil's strip" between two cars approaching from opposite directions with equal disregard of their duties towards persons on the highway? Prudence may have suggested to him that the safest course was to make the crossing as rapidly as possible under the circumstances. of these circumstances was the icy pavement. To a man of his years a mere fall caused by slipping might have had serious consequences. Moreover, the possible danger of falling on the track and becoming so disabled as to be unable to quickly extricate himself One from the peril of an approaching car or other vehicle may, perhaps, have seemed to him a more real and imminent danger than the remoter possibility of being trapped, while on his feet and proceeding with as much speed as caution would permit, by the rapid and unwarned approach of an invisible car without a headlight-a combination of negligent circumstances which he had little reason to anticipate. It is not unreasonable to say that one of the first dictates of prudence may well have been to give special care to his footing, to keep his attention on the way before him, and not to hasten unduly or make any sudden or uncertain move. That he was in fact following this course is indicated by the statement of the motorman that: "He was looking down, watching where he was walking, I should judge." A person, without turning his head perceptibly, can, if attentive, usually, detect the approach of a car or vehicle at some little distance, and there is room for the inference, from decedent's conduct and his surroundings, that his mind was on the alert and that he was listening and attentive, trying to catch any warning of danger from either direction. Under the special circumstances of this case, we are of the opinion that it cannot be said that the plaintiff's decedent was guilty of contributory negligence as a matter of law. We are therefore constrained to hold that the circuit judge erred in setting aside the verdict of the jury and entering a judgment non obstante veredicto in favor of the defendant. This order will be reversed, and judgment should be entered in accordance with the verdict of the jury as rendered, with costs to the appellant. BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, FELLOWS, and STONE, JJ., concurred. MCINTYRE v. TOWNSHIP OF GRANT. 1. MUNICIPAL CORPORATIONS-TOWNSHIPS-HIGHWAYS AND STREETS -PERSONAL INJURIES-NOTICE-STATUTES. Section 8, Act No. 301, Pub. Acts 1915 (1 Comp. Laws 1915, M 4591), requiring the filing of a claim in writing within 60 days from the time of the happening of any injury caused by the defective condition of a highway, is limited in its provisions to "any city or incorporated village of this State where written notice of such injury and defect is now required by law to be served upon such village or city before recovery can be had," and does not apply to townships.1 2. SAME- -CONTRIBUTORY NEGLIGENCE. In an action against a township for personal injuries caused by plaintiff's team going into a hole in the highway, where there was testimony that plaintiff and his sisters had safely passed by the defective spot earlier in the evening by following the tracks, but that when they returned a recent fall of snow had obliterated the tracks and covered the hole, and although he had the defect in mind, he misjudged the distance and the injury occurred, the question of plaintiff's contributory negligence was properly submitted to the jury. 3. SAME. Where the location of the hole in the highway was in dispute, plaintiff testifying that it was in the traveled portion thereof, and defendant's witnesses placing it by measurement at various distances therefrom, an instruction by the court in relation thereto that "In this connection you should take into consideration the date of observation when estimates are testified, and the time at which the measurements were made, and determine whether or not changes have been made in the location," held, not prejudicial to defendant's claims. 4. NEW TRIAL-WEIGHT OF EVIDENCE-EXCESSIVE VERDICT-DAM AGES. Where there was abundant evidence to support the plaintiff's claim as to how the accident happened, and also as to the extent, seriousness, and permanency of his injuries, 'On notice of claim for injury as essential to liability of town for injury by defects in highway, see note in 13 L. R. A. (N. S.) 1228. |