17 Mich. 99 (Mich. 1868), Detroit &Amp; Milwaukee Railroad Company v. Van Steinburg

Citation:17 Mich. 99
Opinion Judge:Cooley, Ch. J.
Party Name:Detroit & Milwaukee Railroad Company v. Jacob Van Steinburg
Attorney:Geo. Jerome, and G. V. N. Lothrop, for plaintiff in error: M. E. Crofoot, and A. B. Maynard, for defendant in error:
Judge Panel:Cooley, Ch. J. Graves, J., Campbell, J. concurred. Christiancy, J. did not sit. Campbell J. Christiancy J.
Case Date:May 13, 1868
Court:Supreme Court of Michigan

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17 Mich. 99 (Mich. 1868)

Detroit & Milwaukee Railroad Company


Jacob Van Steinburg

Supreme Court of Michigan

May 13, 1868

Heard April 28, 1868; April 29, 1868; April 30, 1868

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Error to Oakland circuit.

This was an action brought by defendant in error to recover damages from the Detroit & Milwaukee railroad company, for injuries received by being run over by their cars at Holly.

A verdict was rendered by the jury for plaintiff below, for $ 12,000.

The case was removed to this court by writ of error and bill of exceptions.

Numerous exceptions were taken on the trial to the admission of testimony, as well as the charges to the jury, the material portions of which are stated in the opinion.

Judgment reversed and new trial ordered. Plaintiffs in error recovered costs in this court and the costs in the court abide the result.

Geo. Jerome, and G. V. N. Lothrop, for plaintiff in error:

1. Testimony concerning the rate of speed of a railroad engine with reference to the relation of speed to the distances within which trains can be stopped must proceed from experts. This is a matter of special knowledge. No one can give an opinion worth anything unless by practical experience or observation. Mere presence on a train will not give the instruction. There must be an opportunity to know all the elements that enter into it--speed, force applied, weight of train, grade, etc. Some experience of this kind is necessary to enable the witness to speak at all, and the value of the opinion will depend on the extent of training that the expert has had: 1 Greenl. Ev., 440; 12 Mich. 27; 14 Id. 489; 17 Ill. 582; 2 N. Y., 515; 8 Bosw. 345; 24 How. R., 172; 6 Abb. Dig., 226, § 15.

2. The plaintiff was allowed to put before the jury evidence of what the crowd, or some member of the crowd assembled near the depot, near the time of the accident, said, as to the ringing of the engine bell when the train came in.

This was inadmissible. It was hearsay testimony: 1 Greenl. Ev., § 124; 15 Johns. 495.

3. Upon the point of the degree of care necessary to be used in a case like this, plaintiffs in error cited 5 Barb. 337; 13 Id. 9; 25 Id. 600; 27 Id. 221; 32 Id. 147; 33 Id. 429; 11 Id. 112; 37 Id. 516; 4 Allen 268; 8 Id. 227; 1 Id. 187; 7 Id. 207; S. C., 3 Id. 18; 8 Id. 137; 5 Id. 7; 28 Ill. 299, 523; 18 N. Y., 422; 29 Id. 315; 20 Id. 76; 22 Id. 209; S. C., 4 Id. 349; 35 Id. 9; 49 Penn. 60; 12 Cush. 488; 5 Denio 255; 2 Mich. 263; 10 Gray 274.

M. E. Crofoot, and A. B. Maynard, for defendant in error:

1. A witness for plaintiff was asked whether his attention, at the time of the alleged injury, was called to the fact, whether or not a bell was rung or a whistle sounded.

This was perfectly competent.

It is not in principle unlike the rule permitting witnesses' recollection to be refreshed by themselves recurring to memoranda, or by permitting others to call attention to circumstances to aid or refresh the recollection of the witness: 2 Phil. Ev. (4th Am. Ed.), 916; Id., 917 to 928, and notes; 5 Greenlf. Ev., 436; 12 Mich. 459, 486.

2. Two witnesses, Ellsworth and Mitchell--both of them old mail agents--testified about how fast the train should have been running to stop at its usual place.

The testimony showed that they were expert enough for that purpose. Anybody who has seen trains come into stations and stop, and had given any attention to it, could as well tell how fast ordinarily, a train is running at such times to stop within fifty or one hundred feet, as any elaborately learned expert.

But the witnesses had some knowledge of the matters sought by the inquiry--how fast a train should be running, coming into a station, to stop within a given distance--knowledge founded upon actual observation, the only or at least the best means of knowledge; and although they might not have been as profound as some others upon the subject, still the evidence was admissible. Its weight was for the jury to consider: 12 Mich. 27.

3. Upon the point whether the court or the jury is to determine as to the ordinary care of the plaintiff, defendant in error cited the following cases: 1 Man. and Gran., 568; 39 Eng. Com. Law, 559, 563, 682; 11 East, 60; 3 Man. and Gran., 59; 42 Eng. Com. Law, 40; 1 Adolph. and Ellis, 29; 41 Eng. Com. Law, 422; 21 Wend. 617; 10 Mees. and Wels., 545; 12 Ad. and El., 439; 64 Eng. Com. Law, 437; House of Lords, 1853; 28 Law and Eq., 48; Common Bench, 185; 2 Com. B. N. S. (2 J. S. N. S.), 739; 89 Eng. C. L. Id. Exchequer Chamber, 1858; 5 Com. B. N. S., 573, 594; (5 J. S. N. S.), 573; 94 Eng. C. L; Common Bench, 1860; 8 Com. B. N. S., 525; 8 J. Scott, N. S.; 89 Eng. Com. Law, 525; 16 Com. B. N. S., 179; Same Case, 30 Law and Eq., 473; Common Bench, 1865; 18 C. B. N. S. (18 J. S. N. S.), 225; (114 Eng. C. L.), Common Bench, 1865; 18 Com. B. N. S., 584; (18 J. S. N. S.), (114 Eng. Com. Law, 584;) Queen's Bench, 1866; 1 Q. B. L., 1865-66, 228, 281, 285, 287; Common Bench, 1865; 19 Com. B. N. N. S., 183; 115 Eng. C. Law, 183; 3 Hurl. and Colt., 534, cited in 115 Eng. Com. Law, 118; 2 Mees. and Wells., 770; (Exchequer) 3 Id. 244; (Exchequer) 1865; 16 Penn. 463; 21 Id. 203; 30 Id. 454; 31 Id. 372; 32 Id. 292; 35 Id. 60; 40 Id. 399; 44 Id. 375, 60; 44 Penn. 371, 347, 380; (S. C.) A. L. R. March, 1868, 277; 21 Pick. 176; 21 Id. 254; 7 Met. 274; 2 Cush. 539; 10 Id. 562; 6 Gray 64; 8 Id. 45; 11 Gray 157; 1 Allen 187; 3 Id. 18; 7 Id. 207; 3 Id. 176; 4 Id. 283; 6 Id. 87; 8 Id. 227, 234; 9 Id. 401, 557; 24 Vt. 487; 28 Id. 180; 5 Cal. 360; 18 Id. 351; 13 Geo. 68; 18 Id. 679; 9 Rich. 84; 19 Conn. 566; 23 Id. 101, 339; 27 Id. 393; 3 Ohio 172; 6 Clarke (Ia.), 443; 21 Id. 102, 103; 9 Wis. 202; 18 Id. 74, 175; 19 Id. 489; 20 Ill. 478; 28 Id. 370, 424, 483; 7 Ind. 474; 9 Id. 397; 26 Ind. 76; 4 Zabris. N. J., 268, 284; 5 Dutch. 544; 5 Barb. 337; 8 Id. 368; 13 Id. 9; 3 E. D. Smith, 103; (Com. P.) 14 N. Y., 310; 5 Duer 21; (Superior Ct.) 20 N. Y., 65; 6 Duer 382; 18 N. Y., 492; 2 Bos. 374; 7 Id. 329; 35 N. Y., 516; 18 Id. 248, 422; 21 Barb. 339; 25 Id. 609; 27 Id. 528, 222; 20 N. Y., 232; 31 Barb. 385; 26 How. 32; 32 N. Y., 597; 32 Barb. 144; 18 How. Pr., 427; 32 Barb. 165; 23 How. Pr., 166; 33 Id. 503; 24 N. Y., 430; 29 Id. 315; 36 Barb. 230; 2 Robt. 356; 3 Id. 25; 32 Barb. 159; 24 How. Pr., 97; 32 Id. 262; 35 N. Y., 9; 36 Id. 39, 132.

Cooley, Ch. J. Graves, J., Campbell, J. concurred. Christiancy, J. did not sit.


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Cooley, Ch. J.:

The action in the court below was brought by Van Steinburg to recover of the railroad company for injury done him by one of their engines at Holly station, on September 15, 1865. The plaintiff, it appears, was a hotel-keeper at that place. The track passed between his house and the depot, and only about thirty feet therefrom. He heard the whistle of an approaching train when it called the station; started to cross over the track to the depot; was caught by the engine as it came up, and had one foot taken off, and the toe of another. The defendants insisted that the injury was attributable to his own carelessness; while he, on his part, claimed that the defendants were negligent and he was not.

Thirty-eight exceptions appear in the record, a number of which were not insisted upon on the argument, and will not be noticed here. Four of the others were assigned to rulings of the circuit judge, allowing persons not shown to be experts to testify to the rate of speed the engine was running at the time the accident occurred. Each of these persons stood at the time upon the ground or the platform near the place of the accident, and saw the train pass. Two of them had been a good deal accustomed to railroad traveling; the others were not shown to have had any special opportunity to judge of the speed of passing trains beyond that possessed by people generally.

The point to which the attention of the witnesses was directed was the speed of a passing object. The motion of the train was to be compared to the motion of any other moving thing, with a view to obtaining the judgment of the witness as to its velocity. No question of science was involved, beyond what would have been, had the passing object been a man or a horse. It was not, therefore, a question for experts. Any intelligent man, who had been accustomed to observe moving objects, would be able to express an opinion of some value upon it, the first time he

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ever saw a train in motion. The opinion might not be so accurate and reliable as that of one who had been accustomed to observe, with time-piece in hand, the motion of an object of such size and momentum; but this would only go to the weight of the testimony, and not to its admissibility. Any man possessing a knowledge of time and of distances would be competent to express an opinion upon the subject. The case of Sisson v. Cleveland & Toledo R. R. Co., 14 Mich. 489, which was urged upon us as in point, has no analogy. The question there related to the capacity of an engine, about which none but an expert could be supposed to have knowledge; but this relates to matter of common observation.

In order to establish the negligence of the defendants, the plaintiff sought to show that the velocity at which the train was moving at the time the accident occurred, was so great that it would have carried it considerably by the usual place of stopping; and, having put in evidence to show the rate of speed, a witness was then asked, "at what rate of speed should the train have been running to stop at the usual stopping place?" This question was objected to, because the witness was not shown to be an expert. This question evidently...

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