Marcott v. Marquette, H. & O.R. Co.

• Citation: 49 Mich. 99,13 N.W. 374
• Parties: MARCOTT v. M., H. & O.R. Co.
• Decision Date: 04 October 1882
• Court: Supreme Court of Michigan

13 N.W. 374

49 Mich. 99

MARCOTT v. M., H. & O.R. Co.

Supreme Court of Michigan

October 4, 1882

In an action against a railway company for the negligent killing of a child upon the track, it was held proper for the engineer when asked why he did not see the child, to testify that the child could not possibly be on the track without his seeing it unless it got on from the ditch on the left-hand side of the engine. This was a matter of knowledge and not of opinion.

A witness who swore to having been in the garden of her house which was by the side of a railway track for several minutes before a train passed, and that she did not hear any whistle blown, was asked whether the whistle could have been blown anywhere near the neighboring station without her hearing it. Held that this question was properly ruled out; it related to a matter of opinion and common observation and experience upon which the jury could have judged as well as the witness when she had stated the facts as to distance and the existence of any obstacle.

A jury has a right to disregard the positive testimony of a witness if they are satisfied from other evidence that it is erroneous, even though they do not think it intentionally false.

In an action against a railway company for the negligent killing of a person on the track, it appeared that strangers were in the cab of the engine with the engineer. Held that when the place has been described to the jury, and the situation of the several persons, it cannot be said that the engineer might not be permitted to testify that their presence did not interfere with the performance of his duties; the jury could not judge of this fact as well as the witness.

Where a witness' opinion would be admissible in support of an action, it would be equally admissible against it if it were the other way.

Where there is no statute requiring a railroad company to fence its track for the prevention of personal injuries, a charge that if a fence would have prevented such injury it was negligent not to have have had it, is all that can be asked in an action therefor against the company.

Instructions to the jury are rendered immaterial where the jury find that the case does not turn upon the matters discussed.

Error to Marquette.

F.O. Clark, for plaintiff and appellant.

W.P Healy, for defendant.

COOLEY J.

This case makes its appearance in this court for the third time. Decisions in the former cases are reported in 41 Mich. 433, [S.C. 2 N.W. 795,] and 47 Mich. 1, [S.C. 10 N.W. 53.] On the trial which is now brought under review, the case was submitted to the jury upon the facts, and they returned a verdict for the defendant. The action was for causing the death of plaintiff's intestate, a child two or three years old, who got upon the track of the railroad, and was struck by a passing train. The train was an irregular train, consisting of a locomotive and a single passenger car, and was moving, as the jury found, at the rate of 24 miles an hour. Plaintiff lived very near the track, and there was no fence between the track and his house. Plaintiff was a laborer in defendant's employ. He had two small children, and when he went to his labor in the morning, left them with their mother, who at this time was unwell. The children went out of the house by themselves, and were observed by a neighbor upon the track when the train was approaching. One of them got off in time, and the other was killed. No one appears to have seen them when they went upon the track, and the testimony of the engineer tended to show that they had probably been in a ditch by the side of an embankment on which the track was laid, and that they had come upon the track in haste when they were first observed. The jury negatived any carelessness in the parents in suffering them to go out unattended. The errors assigned on the record are numerous. The most of them relate to the rulings of the circuit judge in the admission and rejection of evidence. We have examined all the rulings in detail, and find all which are not particularly noticed hereafter open to no just criticism. Those which seem to call for special remark are noticed below.

The action was grounded on alleged negligence. The negligence averred was: First, negligent speed in running through the little settlement where the injury took place; second neglect to sound the bell, etc.; third, permitting strangers to be in the cab of the engine at the time and to distract the attention of the engineer; fourth,...