While attempting passage between cars of a train which was obstructing a public crossing in violation of a statutory time limit, plaintiff was severely injured when the train was set into motion without warning. Plaintiff testified that he did not see the engine of the train since it was at the end of a long string of cars. The trial court excluded plaintiff's evidence that for thirty years it has been the custom of the town's inhabitants to cross between the cars of a train which was blocking a public crossing. Upon completion of plaintiff's case, the trial court sustained a motion to dismiss on the grounds that plaintiff had failed to show that the defendant was guilty of negligence and that plaintiff himself was guilty of contributory negligence. On appeal, held, reversed. The trial court erred in excluding plaintiff's evidence of long, public custom in respect to crossing between cars of a train obstructing a crossing, since it was this very custom that raised the duty of due care. The court further concluded that it could not be said, as a matter of law, that the plaintiff was contributorily negligent; and that even if plaintiff were negligent, it was still for the jury to find whether defendant's negligence in moving the cars without a warning was not the sole proximate cause of plaintiff's injury. Stratton v. Southern Ry. Co., ( 4th Cir. 1951) 190 F. (2d) 917.
Joseph M. Kortenhof,
NEGLIGENCE-DUTY OF CARE-PEDESTRIAN CROSSING BETWEEN CARS OF A TRAIN,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol50/iss4/18