Michigan Cent. R. Co. v. Hasseneyer

Citation12 N.W. 155,48 Mich. 205
CourtSupreme Court of Michigan
Decision Date25 April 1882
PartiesMICH. CENT. R. CO. v. HASSENEYER and another.

The question of negligence, where there is any evidence fairly tending to prove it, is for the jury.

Decedent was seen about to cross a railway track in a village, at a time when a train was approaching from one direction, and one backing towards her from the other direction. She was soon after found dead outside the street limits on railroad grounds, having been run over by the backing train. Held that her being found where she was, outside the street limits, did not of itself make out against her a case of contributory negligence.

In judging of negligence all the circumstances are to be taken into the account, and among others the age and sex of the person injured so far as these are important.

But it cannot be laid down as a rule of law that a less degree of care is required in a woman than in a man; and an instruction to that effect is erroneous. The rule of reasonable care and prudence knows nothing of sex.

Error to Kalamazoo.

Edwards & Stewart and G.V.N. Lothrop, for plaintiff in error.

O.W. Powers, for defendants in error.

COOLEY J.

The plaintiff in error was sued by the administrators of Louisa Hasseneyer to recover damages for the negligence of its agents and servants whereby her death was caused. The case comes up on alleged errors in the admission and rejection of evidence, and in instructions given or refused. The decedent was killed at the crossing of the railroad with Burdick street, one of the principal streets in the village of Kalamazoo, on the twentieth day of December, 1878. She was a girl 13 years of age, and was proceeding along the street with a small pail of milk in her hands. The morning was somewhat cold and stormy. As she approached the railroad track a train was passing in one direction, and its bell was being rung. From the other direction an engine was backing up several cars, and its bell was also being rung. It was by this train that the girl was struck and killed. There was a flagman at the crossing, and no negligence seems attributable to him. The brakeman on the backing train was upon the ground, walking along by its side to guard against accidents, but did not notice the girl until she had been thrown to the ground and killed. No one saw the girl when she was struck, and the place where she was lying when first seen was outside the limits of the street.

It was contended for the defence that there was no evidence of negligence on the part of the railroad agents and servants and therefore nothing to go to the jury. It was also insisted that a clear case of negligence on the part of the decedent appeared, and that upon this ground, if not upon the other the court should have instructed the jury to return a verdict for the defendant. We do not agree that the case was so plain on either ground as to justify the court in taking it from the jury, It may be that if we were at liberty to pass upon the facts we should reach the conclusion which the defence insist upon as the only conclusion that is admissible; but we cannot say that the case is too plain upon the facts for fair minds to differ upon, and following our former decisions we agree with the trial court that the facts were properly left to the jury. Detroit, etc., R. Co. v. Van Steinberg, 17 Mich. 99; Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274, 295; Le Barron v. Joslin, 41 Mich. 313; [S.C. 2 N.W. (N.S.) 36.]

Upon a supposition that the jury might find that the decedent at the time she was struck and killed was outside the limits of the highway and upon lands belonging to the railroad company, the defence requested rulings in effect that if such was the fact the decedent was in law chargeable with negligence.

We do not agree that this was necessarily the case. The fact might have an important bearing, or it might not; depending on how far she was outside the street lines, and why she was there, and whether she was aware of the fact. As the street was without fences or cattle-guards at this point, it would be unreasonable to hold that at her peril she must keep herself strictly within its lines, and if no intent to leave the highway was apparent, and she was not further outside than one might inadvertently go in passing along the street and looking both ways for coming and passing trains, the fact should neither absolve the employes of the railroad company from the observation of care to prevent injury, nor charge her with fault if otherwise sufficiently vigilant.

Counsel for the plaintiff in error has been industrious in the discovery of faults in the rulings of the circuit judge, but for the most part his criticisms are too particular and technical to be accepted, or to require discussion at our hands. With a single exception we think no error was committed to the prejudice of the party now complaining. The exception is found in the instruction to the jury respecting the degree of care required of the decedent to avoid the danger to which she fell a victim. It was contended for the plaintiff below that the law did not require the same degree of care of a child as of an adult person, and the court so instructed the jury. This was unquestionably correct. Ry Co. v. Bohn, 27 Mich. 503. But it was...

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