The injury to plaintiff's person was inconsiderable. On cross-examination the plaintiff testified: * * "That electric car has four forward speeds. "Q. After you had looked the last time, and while approaching the street car track previous to turning, at what speed were you running? "A. When I started to turn the car, or before I turned it probably not faster than seven miles an hour. * * * "Q. So in what distance, under the conditions as they were at that time, to your best judgment, would you have been able to have stopped the car running at a speed of 7 or 8 miles per hour? "A. Well, it is impossible for me to answer the question only in this way: I use both brakes; I might possibly have been able to stop the car going at that speed in 10 feet or 8 feet. "Q. Eight feet or ten feet using both brakes? "A. I don't know exactly; I don't know as I could." He was then asked if he could have stopped it within 10 feet or 12 feet or 16 feet or 18 feet, and he answered he could not tell. Cross-examination continuing: "Q. The front of your car was from 18 to 20 feet from the street car track when you saw the car the last time? "A. When I saw the car the first time; I never saw it but once. "Q. You saw it only once? "A. I looked up and saw it when I was forty feet away. "Q. In the neighborhood of forty feet? "A. Yes, sir. "Q. When you approached the track when away a distance of 18 or 20 feet away from the car track, you looked again and saw the car approaching again at that time? "A. Yes, sir. I noticed that the car was approaching very rapidly. I could not give the exact distance it was away when I first saw it; it would be impossible for me to tell you." On re-direct examination plaintiff further testified: "When I got within 18 or 20 feet from the track, I saw this car to my left. It is almost impossible for me to tell positively, whether or not, at the speed I was going, seven or eight miles an hour, I could stop that car in a distance of 18 or 20 feet, when I first saw the car before reaching the track." Edward Voss and Edward Whitstock, two witnesses produced by the plaintiff, were driving another automobile, coming south on McDougall avenue at the time of this accident. They saw the street car coming, and stopped their car on the north side of Waterloo street, to allow the street car to pass. Voss testified, on crossexamination, that he was accustomed to operating electric automobiles: "I have been at the Anderson electric; that is about the same thing. Four speeds. The same as Woods. I could not tell how weight compares. In size they are about alike, about the same thing. Both have batteries the same. "Q. In that electric car, an electric car running at the speed of seven or eight miles an hour, on a good pavement, asphalt pavement or brick pavement, in what distance could it be stopped? "A. By using all the appliances at seven or eight miles an hour you could stop it in six feet." Whitstock testified: * * * "From where I stood, I thought Mr. Miller wanted to cross the track, but when he saw the street car, he wanted to avoid it, and turned around. At the time he turned he was getting on the track. The street car was then about 100 feet from him. I heard no gong or bell. That day that [street] car was driving at the rate of between 20 and 25 miles an hour. When I first saw the car, when the car was 100 feet off, I did not notice any checking of the rate of speed of the car. I noticed the car when it came upon Miller. When Miller's car was struck it was knocked about 40 or 45 feet from where he started to cross the track, down Waterloo street." Upon the defense, the conductor and motorman oper ating the street car, and three disinterested eyewitnesses, all of whom were on the street car, gave testimony tending to show that the street car was being operated at about 12 miles per hour with the power shut off, as it approached the intersection of McDougall avenue; that the automobile came up the street at the speed of at least 20 miles per hour, and did not change its speed, but ran directly in front of the street car; and that when the street car was near the west line of McDougall avenue, the automobile was 75 feet south of the street railway track. Several of these witnesses testified to the ringing of the gong by the motorman from the time it was 100 feet away from the corner and his prompt action in attempting to stop the car. Other of defendant's witnesses on the street car testified that they saw the automobile plainly when it was 30 feet away from Waterloo street. The crossing was considered a dangerous one, because of a building which stood near the southwest corner of the intersection. There was a conflict in the evidence as to the distance the street car ran before stopping after the collision, varying in distance from 5 to 40 feet. Defendant requested the court to charge the jury that the plaintiff was guilty of contributory negligence and could not recover. This was refused, and the questions of the negligence of the defendant, and the contributory negligence of the plaintiff were submitted to the jury. There was a motion for a new trial based upon several grounds, among which was this, that the verdict was contrary to the weight of the evidence. This motion was denied and exceptions were duly entered. In this court the defendant, under proper assignments of error, claimed that a verdict should have been directed in its favor, under the testimony, on the ground of contributory negligence of the plaintiff; that no negligence on the part of the defendant was shown; and that the verdict of the jury was, in any event, contrary to the weight of evidence. In our opinion the uncontradicted testimony shows that the plaintiff was guilty of contributory negligence as matter of law. His own testimony was so contradictory, and irreconcilable, that it furnishes but little aid in disposing of the case. While in his declaration he claimed that when he slackened the speed of his automobile at a distance of about 25 feet from the track, he looked and saw a car coming at a "terrific speed"; at the trial he testified first, that when he was 40 feet from the track he saw no street car coming, that he then proceeded until he was about 18 or 20 feet from the track, and at that point saw the car coming rapidly. On cross-examination he distinctly testified that "I looked up and saw it when I was 40 feet away." After testifying that he could probably have stopped the automobile in "10 feet or 8 feet," he then gets into "doubting castle," and does not know as he could have stopped it in 18 feet. We are satisfied from the evidence that the car could have been stopped in from 6 to 10 feet, in the exercise of reasonable care. He testified that the car was in perfect condition, and he was accustomed to running it. The following cases, with others, are cited by appellant upon this branch of the case: Colborne v. Railway, 177 Mich. 139, 150, and cases cited; Borschall v. Railway, 115 Mich. 473. As was said in the last cited case: "If he saw the car coming, and then attempted to cross the track, he took his chances of being injured and cannot complain." We are also of the opinion that the verdict was contrary to the great weight of the evidence. For these reasons the judgment of the circuit court is reversed, with costs to the appellant, and no new trial will be granted. OSTRANDER, C. J., and STEERE, BROOKE, and FELLOWS, JJ., concurred with STONE, J. MOORE, J. I concur because the verdict is against the weight of the evidence. BIRD, J., concurred with MOORE, J. KUHN, J., did not sit. ENGEL v. SMITH. PROCESS-SERVICE-JOINT DEFENDANTS-NONRESIDENTS Where suit was commenced in plaintiff's home county against joint defendants residing in another county, and service of process was had on one of the defendants in plaintiff's home county, but no proof of service of the writ on the home defendant was made and filed with the county clerk before service was had upon the other defendants in another county, the practice was not in conformity with chapter 13, § 27, subd. 4, of the judicature act (3 Comp. Laws 1915, § 12430) and Circuit Court Rule No. 18, § 1, and therefore the court did not obtain jurisdiction, and any judgment rendered therein was void. Case-made from Kent; Barton, J., presiding. Submitted January 15, 1918. (Docket No. 74.) Decided March 27, 1918. Replevin by Gust Engel and another against William L. Smith for the possession of an automobile. Judgment for plaintiff. Defendant appeals. Affirmed. E. J. Bowman, for appellant. Smedley & Linsey, for appellee. |