Opinion
Docket No. 40, Calendar No. 41,295.
Submitted January 8, 1941.
Decided March 11, 1941.
Appeal from Wayne;Webster (Clyde L.), J. Submitted January 8, 1941. (Docket No. 40, Calendar No. 41,295.) Decided March 11, 1941.
Case by Ella Waterman against City of Detroit, department of street railways, for personal injuries sustained when a passenger on the car on which she was riding was thrown against her. Directed verdict and judgment for defendant. Plaintiff appeals. Affirmed.
Frank Schwartz, for plaintiff.
Rodney Baxter and A. Albert Bonczak, for defendant.
On October 13, 1937, plaintiff was a passenger on one of defendant's streetcars, traveling in a westerly direction on Fort street in the city of Detroit. The car became crowded, making it necessary that some of the passengers stand in the aisle. She claims that the car was traveling at a fast rate of speed between stops. There was, however, no evidence that the rate of speed was excessive or illegal.
Plaintiff, sitting on a seat along the side of the car, near the front, looked out the front window, her attention being attracted by the ringing of the gong by the motorman. She saw an automobile proceeding on the tracks in the same direction as the streetcar, about one half block ahead. The streetcar overtook the motor vehicle and when within six feet thereof, according to her testimony, it was stopped with a jerk by application of the brakes. The abrupt halt caused a large woman, weighing about 250 pounds, standing in the aisle in front of plaintiff, to lose her balance and fall on plaintiff. As a result thereof, she claims to have sustained personal injuries for which she seeks damages in this action.
At the close of plaintiff's proofs, the trial court directed a verdict for defendant, and judgment was entered accordingly. This appeal followed.
Plaintiff cannot recover unless some negligence is shown on the part of defendant's servant, the motorman, in the operation of the car. We fail to find evidence thereof in the record. The case is indistinguishable from and is controlled by Etson v. Railway Co., 110 Mich. 494; Conroy v. Railway, 139 Mich. 173; Snyder v. Michigan Traction Co., 154 Mich. 418; Ottinger v. Railway, 166 Mich. 106 (34 L.R.A. [N. S.] 225, 3 N.C.C.A. 323, Ann. Cas. 1912D, 578); Bogart v. City of Detroit, 252 Mich. 534, and Selman v. City of Detroit, 283 Mich. 413.
Appellant claims the evidence of negligence in the instant case is to be found in the fact that the motorman continued to run the car at a fast rate of speed after he had become aware of the presence of the automobile on the tracks, and that he should have decreased the speed so that a stop could have been made if necessary in the usual manner without a sudden jerk. Although plaintiff testified that the car was proceeding at a fast rate of speed, there is nothing in the record, as we have stated, that would justify the finding that the speed was excessive or illegal. Certainly it was proper for the streetcar to overtake the automobile, and, after having done so, defendant is not to be charged with negligence if it was brought to a sudden stop to avoid a collision.
The judgment is affirmed, with costs to defendant.
SHARPE, C.J., and BUSHNELL, BOYLES, NORTH, McALLISTER, WIEST, and BUTZEL, JJ., concurred.