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"It can be said that the plaintiff introduced no testimony showing what care and caution decedent exercised in approaching the crossing, nor was it shown whether he stopped his horse and looked or listened. Upon the testimony as the plaintiff left it, the jury might have inferred that decedent approached the track with due care, or at least they might have relied upon the presumption of law above referred to. Was this presumption overcome by evidence? is decedent's conduct prior to reaching the danger zone, the track, that is material, and it is urged by plaintiff that there is no direct testimony on that point, and that the presumption of law is that he did stop, look and listen. It is the claim of the plaintiff that it was impossible for decedent to have seen the train until he had cleared the extreme westerly side of the box car, and then his horse was on the track. While we consider the question of contributory negligence a close one, we are of the opinion that it cannot be said that the decedent did not exercise the care that an ordinarily prudent man would have exercised under like circumstances, and we think that the question was properly submitted to the jury."
See, also, McWilliams v. Mills Co., 31 Mich. 274; Billings v. Breinig, 45 Mich. 65; Adams v. Iron Cliffs Co., 78 Mich. 271 (18 Am. St. Rep. 441); Jones v. Railroad Co., 127 Mich. 198; Schremms v. Railroad Co., 145 Mich. 190 (116 Am. St. Rep. 291); Richardson v. Railway Co., 176 Mich. 413.
In a few cases, however, notwithstanding there have been no eyewitnesses of the accident resulting in death and consequently no direct, positive testimony as to any negligence on the part of deceased, nevertheless the circumstances surrounding the accident as revealed by the evidence have shown so conclusively that it could not have happened without such contributory negligence, that this court has held that the presumption of due care has been entirely rebutted and displaced. A typical case of this kind is Kwiotkowski v. Railway Co., 70 Mich. 549. In that case plaintiff's decedent attempted to cross the railroad tracks at a street crossing with which he was very familiar, on a dark, rainy evening, in front of a rapidly approaching train, with a blazing headlight which lighted the track for at least a block. No one saw the accident. It was said in the course of the opinion, written by Mr. Justice MORSE:
“We cannot avoid the conclusion that the deceased did not look up or down the track, as he should have done, after passing the wood-office. If he had so looked, he must certainly have noticed the headlight of this approaching train. If he did look, he must have been careless, and attempted to cross the track when he should not have done so.
"It is true that we held in Mynning v. Railroad Co., 64 Mich. 102, that the presumption of law is that the person killed at a crossing did look and listen, in the absence of any showing to the contrary; and we have also held in other cases that, if the evidence on the part of the plaintiff fails to show any contributory negligence on the part of the person killed or injured, he is not required to go further, and negative by direct evidence that he was in fault, as where there are no eyewitnesses this would be impossible. But in this case, although no person saw the deceased after he passed the wood-yard until his mangled body was found beside the track, yet the location of the track is such that the conclusion is irresistible that if Kwiotkowski had simply stopped a moment, or had looked down the track without stopping, he could have seen the headlight of the locomotive, and been warned of his danger in time to have averted it.
The inevitable conclusion to which all unprejudiced minds must come, being that the deceased did not look, or, if he did look, took his chances to get across the track when he ought, as a prudent man, to have stopped, the circuit judge was right in directing a verdict for the defendant."
A more recent case of this class, and one very similar to the above in its essential features, is Guntermann v. Railroad Co., 168 Mich. 37, where Mr. Justice BROOKE, in his opinion, after reviewing the salient facts, said:
“Under the facts disclosed, the presumption that decedent acted with due care is swept away, and he should be charged with such negligence as would preclude recovery by the plaintiff. Assuming that the horse was traveling at the rate of 4 miles per hour, and the train at 40 miles per hour, when decedent was 30 feet from the track, the train was but 300 feet away, approaching with its headlight burning, and its engine bell ringing. A verdict should have been directed for defendant."
See, also, Grostick v. Railroad Co., 90 Mich. 594.
While the above may serve as a rough classification of the decisions relative to the presumption of due care, it will be seen that the real test in each case is whether or not the evidence tending to show contributory negligence, be it direct or circumstantial, is so conclusive that reasonable and unprejudiced minds could not fail to be convinced that decedent was careless. If there is room for reasonable doubt, the question must be submitted to the jury. And while the jury, in weighing the evidence, may not consider the presumption, yet if, uninfluenced by the presumption, they reach the conclusion that the evidence tending to show decedent's negligence is not entitled to credit and should be disregarded, the presumption may then be considered as remaining in force so far as may be necessary to establish the fact that the deceased exercised proper care in all respects not expressly established by the evidence. It was not entirely displaced, but remained in abeyance pending the jury's reaching this preliminary decision as to the credence to be given the evidence on the particular point in which negligence was claimed.
But aside from the question of the kind and amount of evidence required of the defendant to rebut the presumption under discussion, in a case where it has
once become operative, it is, of course, in all cases a prerequisite to the presumption coming into operation at all that the facts established by plaintiff's proofs show nothing in the nature of negligent conduct on the part of the deceased. As stated in Teipel v. Hilsendegen, supra:
"He (plaintiff) should put in evidence the facts and circumstances attending the injury, and if these show negligent conduct in the defendant from which the injury followed as a direct and proximate consequence, and do not show any contributory negligence in the plaintiff, a prima facie case for a jury is made out. He cannot be required to go further than this in negativing his own fault, and in many cases where there are no eyewitnesses, it would be impossible.
"Nor is it necessary that the absence of contributory negligence should be shown beyond cavil or question. If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff's fault, he is entitled to go to the jury upon the facts."
But if the testimony of plaintiff's own witnesses clearly shows the lack of proper care and precaution on the part of the deceased, the presumption then has no opportunity to come into play, and there is therefore no burden cast upon the defendant to introduce any rebutting evidence whatever. Under such circumstances, plaintiff has failed to establish even a prima facie case, and the court must direct a verdict for the defendant. This, in our view, is the situation in the case at bar, and it is therefore unnecessary for us to pass upon the question of whether or not the presumption could, under any conceivable circumstances, be held to operate where the victim of the accident survives, but has no recollection of the circumstances attending the accident.
Plaintiff's counsel, however, rely upon the fact that not one of the eyewitnesses could testify as to whether or not he looked and listened before attempting to cross the track, and also take the position that, inasmuch as plaintiff's car was at a full stop within the limits of the traveled portion of the street at the time that he made the decision to cross, it was not necessary again to bring it to a stop. They insist that the presumption of due care can be displaced only by "affirmative, direct and creditable testimony that the person injured went upon the track without stopping to look and listen,” and there being in this case only indirect or circumstantial evidence as to these particular points, the presumption must be considered as in force so as to require the submission of the case to the jury under the rule in Teipel v. Hilsendegen, supra. We do not think there is any merit in the contention that the only kind of direct testimony sufficient to rebut the presumption is testimony that the deceased did not stop, or look, or listen. The presumption is broader than that; it is that deceased used due care in every respect. Any direct testimony, therefore, showing a failure in any respect to use due care would displace the presumption. It cannot be disputed that in a case where the deceased had stopped and looked and listened, and had then attempted recklessly to cross in front of the car, his action would be held negligent just as much as an attempt to cross without looking or listening. In such a case, in the absence of any proof on the subject, the presumption would be that he did not attempt to cross recklessly after looking; and it is manifest that any direct testimony showing that he did so attempt recklessly to cross in front of the car must be held to remove entirely the presumption of care. Indeed, this court has often stated the rule'as to the presumption more broadly than in Mynning v. Railroad Co. Thus in Adams v. Iron Cliffs Co., 78 Mich. 271 (18 Am. St. Rep. 441), it was said: