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resided with her husband on a farm in the township of Ecorse, near the city of Detroit. They were engaged in farming and market gardening. In the forenoon of September 8, 1911, they were going home from the western market of Detroit where they had taken a load of tomatoes, driving with an empty market wagon drawn by a single horse, eight years old and gentle. Their route home led westerly along Jefferson avenue, on which was a double track of defendant where cars were running in each direction at frequent intervals. They were familiar with the street and knew this. The portions of the thoroughfare used as a driveway for vehicles on each side of the street car tracks were about 171/2 feet wide. In going west towards their home the proper side for them to drive was on the north or right of the tracks. This they did for some distance until near where the track of the Detroit, Toledo & Ironton Railroad crossed the street, when they crossed to the south or left side to avoid an excavation on the north side for water mains. They drove along the south side for quite a distance past the excavation, keeping about halfway between the curb and car track, to a point some distance beyond the steam railroad crossing and about midway between Portland and Polaski streets, which crossed Jefferson avenue, when, after meeting two loaded sand wagons going east, the husband, who was driving, turned the horse sharply to the right, intending to recross the street car tracks and get back on the right side of the street again. Both claimed to have looked and listened, and neither to have seen or heard any approaching car, but a west-bound car came in contact with their wagon before it cleared the track, with sufficient force to tip it over, throwing them out. In her fall plaintiff sustained a fractured clavicle and other injuries, from which she was incapacitated for some time, and at the trial claimed to have not fully recovered. The horse was not injured and the wagon was in condition to continue the journey with it.
The negligence alleged in plaintiff's declaration is stated to be that the car, "without giving warning of its approach by sounding its gong and otherwise, and being propelled at a great and excessive rate of speed, struck the wagon in which plaintiff and her husband were then riding,” etc. The record furnishes no evidence that the car was being run at an unusual, unlawful, or excessive speed prior to the time the conveyance turned across the car track. The various witnesses who testify as to the rate of speed place it from 10 to 14 miles per hour. The highest estimate given was by a witness named Aston, called by defendant, a passenger on the car, who stated the speed to be from 12 to 14 miles per hour, which was first slackened by a sudden application of the air brakes, which "lifted the people right out of their seats in the car.” As bearing upon the rate of speed and promptness of the stop made by the car, he testified that his attention was first attracted by a loud sounding of the gong, accompanied by application of the brakes, and looking up he saw the rig crossing the track about 15 or 20 feet ahead, being then about the middle of the track, and he said:
“The car didn't hit the wagon very hard. It jarred the wagon slightly, and then shoved it, and the wagon tipped over. It didn't hit the wagon sufficiently to knock
the people out of the wagon until the wagon went over, and then the people fell out. I should judge the car could not have gone over six or seven feet after it came in contact with the wagon.”
Neither plaintiff nor her husband give any direct testimony as to the speed of the car, claiming they did not see it at all until they collided with it. Plaintiff in one portion of her testimony stated that there was a curve in the track which prevented them from seeing the car, and that when they attempted to cross
they were about 50 feet below the curve. She also testifies in part as follows:
"I know cars run both ways on Jefferson avenue, and I knew a car might come from the east going west at any time there, and a car might come from the west going east. I knew that long before this accident happened.
We could see on Jefferson avenue about 50 or 100 feet from the place where the accident happened. The car that hit the wagon was going in the same direction we were going. The back wheel of the wagon was on the track when it was hit by the front part of the car. I don't remember where the wagon was standing when I fell out of it. I know the car struck the rear end of the wagon. We turned around and looked for a car, and we didn't see no car coming. We just looked once, and then we started our horse over across the track.
At the time the accident happened it was nice and bright and clear.”
Her husband described the conditions and circumstances of the accident in part as follows:
"Well, when I come before I crossed-when I came to turn I looked back there. I could see about pretty close to—200 feet, about that. I was looking if I could see the car coming, so when I seen the car—I didn't see no car—so I went across.
I was going down alongside of the curve there about half and half between the curb and the street car track. We got struck by the car when we were crossing the track. We was pretty near passed. It only struck the hind wheel and spoke. The mark is there yet. I seen the mark. It was no more than that much from the tires right on the side, pretty near. The car just struck the wheel and then he turned the wagon around, swung around there, and then we went upside down.
“I knew I might expect a car going either direction along there any minute.
I looked when I come to turn to cross, I looked below the turn. I only looked back once, then I crossed.
"Q. And that is just before you started to cross the track?
“A. I was on the track; yes, sir.
"A. Well, I was just turning there; I was on the track; I was just turning to cross.
“Q. Didn't you look for the car until you were on the track?
“A. Well, just as I started to turn to cross I looked for a car; I didn't see any.
“Q. Now, how did you turn across the street car track?
“A. Well, I turned my horse to go across.
“Q. Yes, I know; but I mean how was the turn made? Was it a sharp turn, or did you just go angling across?
“A. No, I turned sharp, a sharp turn, right turned sharp.
"Q. When you got to this point you turned square across the track?
“A. Of course.
“Q. Now, just before you turned to make that crossing did you stop your horse?
"A. No, sir.
"A. Well, you see, I turned back, and looked back about 25 feet or more, and then I didn't see no car, and I didn't hear any noise, so I went across.
“Q. When you turned around and looked that time how far could you see along the street car tracks, back towards the Lima bridge?
"A. Well, I am telling you when I started to turn to cross the street it was I could see 200 or 250 feet, about.
"Q. Just how far did you turn around in your seat?
“Ă. Well, I just turned that way [indicating]. Of course, the curve where the turn was was below me, so I could see only about 200 or 250 feet. I turned more than halfway around. *
I thought it was all right. My horse was gentle, and I was going on a walk. Even without drawing the lines at all, if
I had simply said, 'Whoa,' he would have stopped at once, but I went along. My horse is not afraid of the street cars. He would stop right at the hind end of a street car if necessary. The horse wasn't hurt. The wagon was pretty well bruised.”
A witness called by plaintiff, named Walter Kempa, who worked in a meat market near the scene of the accident and saw what happened, testifies in part:
“The car was about 15 feet from me when I noticed it. The motorman rang the gong when he was about 15 feet away. The car did not stop before it struck these people. It went about 10 feet after it struck them before it stopped.
“When I first saw the wagon it was just crossing, coming up towards the track. The gong was ringing and the wagon kept right on coming, and by the time it got to the street car track the car got there, too, and hit the wagon, and the car went about ten feet after that."
"The wagon when I saw it first was just turning. I didn't notice how far the car was then. The first I noticed of the car was when I heard the gong ringing and the car was about 15 feet from the wagon.”
Recross-examination: “Q. I understood you to tell me a minute ago that when you first saw the car it was 15 feet away from the wagon, and the wagon was just starting to turn there?
“A. Yes, sir.
“Q. You saw the car 15 feet away when the wagon started to turn ?
“A. Yes, sir.