Mahlen v. Lake Shore & M.S.R. Co.

• Decision Date: 10 January 1883
• Parties: MAHLEN v. LAKE SHORE & M.S. RY. CO.
• Court: Michigan Supreme Court

14 N.W. 556

49 Mich. 585

MAHLEN v. LAKE SHORE & M.S. RY. CO.

Supreme Court of Michigan

January 10, 1883

A workman while on his way home in the evening stood talking with a companion by a railway track where three roads ran side by side, and where, by daylight, the track could be seen for two miles. He had drunk two glasses of beer. He was 40 years old and familiar with the locality, and he also knew that a train was due. A well-illuminated passenger train which had broken its head-light, and had substituted an ordinary lantern therefor, approached, and was seen by several persons in the neighborhood. The workman, however did not see it, but heard a rumbling which he supposed came from some vanishing train on one of the other tracks. He stepped on the track nearest him, with his companion, and both were struck, the latter being killed; held, that he did not exercise due care.

Error to Wayne.

E.H Sellers, for plaintiff.

Ashley Pond, for defendant and appellant.

GRAVES, C.J.

The plaintiff recovered damages for being struck and injured by one of defendant's trains while he was going on foot across the track on a public street, and the defendant seeks a reversal on allegations of error. The trial was before a jury. The defendant's negligence was averred to consist in the three particulars of running the train without a head-light; in going at excessive speed, and in failing to give warning by bell or whistle. The first two were ruled out and the defendant's culpability was therefore rested at least on the allegation of failure to sound the bell or whistle. The argument on the part of the defendant has limited the objections to two grounds, both of which rest on refusals to charge as requested. First, that the uncontradicted evidence establishes that warning by bell and whistle was duly given. Second, that according to the admitted and the unquestionable facts the plaintiff's being struck was owing chiefly, if not wholly, to his own neglect of due care.

The first position will not be considered and attention will be confined to the last. No map or diagram accompanies the record and knowledge of localities must be gathered from scattered remarks of witnesses. The casualty occurred at a point in Vinewood avenue a little east of the west boundary and shortly before 7 o'clock in the evening of March 16 1881. About one-third of a mile west of Vinewood is Michigan avenue and between them and about 300 feet distant from Vinewood is Twenty-eighth street. Three railroads running a few feet apart cross these streets. They are the Bay City the Grand Trunk and the road of defendants. The Bay City is the most southerly and the road of defendants which is next is about 50 feet from it. The Grand Trunk is within a few feet on the north.

The plaintiff is thirty-nine years of age. He was living on Vinewood avenue near the crossing and north of it and had been for eight months; but was at work in the Michigan car shops near Michigan avenue. At a quarter before 5 he stopped work and called at Brinkman's and drank a glass of beer. He fell in with a companion by the name of Fraser, and the two went to a shoe store near by and stayed about half an hour. They then returned to Brinkman's where each took another glass of beer and then started together for their several homes. They went by the way of Boulevard street to defendant's track at a point about a dozen rods west of Vinewood avenue and followed it till they reached the cattle-guard. They crossed the cattle-guard and then stopped to talk where the sidewalk of the avenue is intercepted by the track and within two feet of the south rail; the plaintiff intending to cross the track there to go to his house. At this time the train was just about due. They remained in talk there for some two minutes. Leaving them standing there in conversation close by the rail at train time it is but to refer to other circumstances. While the train was at Monroe it was found out that the glass of the head-light had been broken and at Trenton a common hand lantern having a white light was put in and the train was run with that light through to the depot. The passenger coaches were well lighted. The speed was 30 miles an hour.

Although the evening was quite dark and the ordinary head-light was wanting it was still entirely practicable to see the train some distance off. John Burk while walking on the sidewalk on Vinewood avenue and 200 feet from the crossing saw the train before it reached there. Mary Wilson a resident on the avenue and about 125 yards from the crossing noticed the train from her house and observed that the light was not the usual one, but smaller, and she observed further that there were lights in the cars. William Stecher saw the train when it was two or three blocks from him. James McCracken was walking on the track towards Vinewood avenue. Fraser and the plaintiff had preceded him and were some distance ahead. He was in the middle of the track and knew it was about train time and hearing the whistle looked around and saw the train coming. It was about its own length behind him as he thinks and he got off. This was near the Vinewood crossing. Charles M. Ward was going on the track towards the avenne and when about half-way between that and Twenty-eighth street he discovered the train when it was four or five rods behind him and in time to get off. Returning to Fraser and the plaintiff who were left in conversation by the rail, and the plaintiff states that he looked and listened but heard no bell or whistle while he stood there, nor saw any train on defendant's track; that all was quiet; that it was so dark he could not see the track. But...