
    No. 467
    DAY. T. & I. CO. v. BAUER, as Executrix
    No. 19786.
    Supreme Court
    On motion to certify.
    Dock. Apr. 28, 1926.
    829. NEGLIGENCE — Where facts alleged in petition in action for wrongful death create an implication of contributory negligence which is not rebutted by any other facts set forth, is such petition subject to demurrer?
    Attorneys — C. B. Longley, W. R. Middleton, Detroit, Michigan, Keifer & Keifer, Springfield, for Company; Martin & Corry, Springfield, Executrix.
   Vinnie A. Bauer, executrix of the estate of Charles Bauer, deceased brought this action originally in the Clark Common Pleas against Detroit, Toledo & Ironton Railroad Company decedent.

for damages for alleged wrongful death of

The damage complained of was sustained by reason of a collision between automobile driven by decedent and a Detroit, Toledo & Ironton railroad train at a certain crossing in Springfield.

The original petition alleges negligence on part of the Company in that the crossing was in bad repair, a building on property owned by the railroad obstructed a view to oncoming trains, an electric bell rang continuously without regard to approaching trains, the bell on the engine was not rung and the train was travelling at an excessive speed in violation of a city ordinance.

It appears that the decedent drove his automobile up to the tracks on the crossing where the front wheels caught in a hole and by reason thereof the decedent was unable to move from the path of the train. The judgment on the verdict in favor of the executrix for $15,-000 was affirmed by the Appeals.

The Company in the Supreme Court contends:

1. That demurrer to petition should have been sustained because an implication of contributory negligence was not rebutted by any allegation in the petition.

2. That court erred in not directing a verdict for the Company because the implication of contributory negligence was not rebutted.

3. That court erred in submitting to jury whether or not the Company was guilty of contributory negligence in maintaining the alarm bell which was out of repair.

4. That the damages were excessive.  