Phinney v. Detroit United Railway Co.

SHARPE, J. A highway, running north and south, crosses the line of defendant's railway almost at right angles at the village of Atlas, in Genesee county. On Sunday, February 20, 1921, about 2 o'clock in the afternoon, John H. Densmore was driving a Ford roadster, going north, on the highway. With him in the car were his wife, his child, Odessa, and Florence Phinney, the wife of plaintiff. Defendant has a small station house at Atlas, located about 50 feet east of the highway. About 1,300 feet east of the crossing, defendant's track makes a long sweeping curve to the south. One of defendant's limited interurban cars, going west, not scheduled to stop at Atlas, collided with the roadster driven by Densmore at the crossing. As a result of the collision, the three adults were killed, and the child was injured.

Plaintiff, as administrator of his wife's estate, brings this action to recover the loss sustained, due to her death. The cause was submitted to the jury, who found for the defendant. Plaintiff reviews the judgment entered by writ of error....

Edward Elford, who was in the employ of the defendant as a conductor on an interurban car at the time of the accident, and had been so employed for several years prior thereto, was asked, "What would be the proper thing to do to stop it as quickly as possible in case of an emergency?'' An objection to the question asked was sustained. Error is assigned thereon.

Hinkley, called for cross-examination, had testified that he first saw the automobile when his car was 800 or 900 feet from the crossing; that the station house afterwards obstructed his view, and he next saw it when it was about 50 feet from the crossing and his car about 250 or 300 feet therefrom; that he made no special effort to stop until within 100 feet from the crossing, and that he then applied the brakes with full force; that he did "not sound the foot gong, or reverse the motor, nor apply the sand on the wheels''; that he had theretofore sounded the usual crossing whistle; that he considered the application of the air (emergency) brake the safer way to quickly stop his car; that at that time he was going from 35 to 40 miles an hour. He admitted that on a former trial of this case he had testified that he had not applied the brakes until his car was within 35 or 40 feet from the crossing, and, on being asked, "That is right, is it?'' answered, "Yes, sir.''...

Error is assigned on the refusal of court to permit plaintiff's counsel to show by Elford and other employees of the defendant that Hinkley had the reputation of being a reckless motorman. The authorities cited by counsel in support of his contention that this evidence was admissible are cases in which employees were injured through the negligence of a fellow servant. We think they have no application to the facts here presented. The jury were concerned only with the manner in which Hinkley drove his car and the effort he made to stop it at the time of the collision.

Why was Elford's testimony as to the motorman's reputation for recklessness excluded? Would evidence of specific acts of recklessness have been admissible?