Brady v. Pere Marquette Railway Co.

227 N.W. 737, 248 Mich. 406, 1929 Mich. LEXIS 578

• Court: Michigan Supreme Court
• Decided: December 3, 1929
• Docket: Docket No. 111, Calendar No. 33,510.
• Status: Published

Opinions

Wiest, J.

The circuit judge was right in directing the verdict for defendant.

If defendant was guilty of negligence, the husband of plaintiff, driver of the automobile, was clearly guilty of contributory negligence, and, under the doctrine of imputed negligence, she cannot recover.

The driver of the ear had open to him, and says he employed, a view of 700 feet down the track over which the train came, and that he saw no train, and yet, in driving his automobile a distance of about 15 feet, the train struck him. Where such a view is open, a collision between a train and an automobile moving across a railroad track is only possible by reason of want of care on the part of the automobile driver. No testimony can refute the unquestioned physical facts, and no indulgence in arithmetical soliloquy can make it otherwise. If the driver did not see the train he f ailed to see what he should have seen, and what he should have seen and heeded, instead of what he says he did not see, governs in a lawsuit. The court still heeds physical facts, even though disputed by testimony. Molby v. Railway, 221 Mich. 419; Baader v. Railway Co., 228 Mich. 104; Molda v. Clark, 236 Mich. 277; Kun v. Railway Co., 240 Mich. 598; Kneebone v. Lake Superior District Power Co., ante, 403. In connection with what I have said it will be profitable to examine the majority opinion in Rushford-Surine v. Railway Co., 239 Mich. 19.

The judgment is affirmed, with costs to defendant.

North, C. J., and Fead, Butzel, and Sharpe, JJ., concurred with Wiest, J.