2 N.W. 795 (Mich. 1879), Marquette, H. & O.R. Co. v. Marcott

Citation:2 N.W. 795, 41 Mich. 433
Opinion Judge:[41 Mich. 435] GRAVES, J.
Party Name:MARQUETTE, HOUGHTON & ONTONAGON RAILROAD CO., Plaintiff in Error, v. GILBERT MARCOTT, Administrator, etc., Defendant in Error.
Attorney:W.P. Healy, for plaintiff in error. [41 Mich. 434] F.O. Clark, for defendant in error.
Case Date:October 08, 1879
Court:Supreme Court of Michigan

Page 795

2 N.W. 795 (Mich. 1879)

41 Mich. 433

MARQUETTE, HOUGHTON & ONTONAGON RAILROAD CO., Plaintiff in Error,

v.

GILBERT MARCOTT, Administrator, etc., Defendant in Error.

Supreme Court of Michigan

October 8, 1879

The declaration in an action for injury resulting from negligence must specify the particular acts of negligence complained of, and the proof be confined to the issue made. Where, in such action, the jury were permitted to consider acts of negligence other than those charged in the declaration, held, that new trial should be granted.

W.P. Healy, for plaintiff in error.

[41 Mich. 434] F.O. Clark, for defendant in error.

[41 Mich. 435] GRAVES, J.

On the twentieth of September, 1877, the decedent, Joseph Marcott, son of defendant in error, and then about two and one half years of age, was struck fatally by a passing train of the plaintiff in error, on their railroad in Marquette county. The defendant in error, claiming that the injuries were the proximate consequence of actionable negligence on the part of the railroad company, sued, in his capacity

Page 796

of administrator, to recover therefor, and in November, 1878, he obtained a verdict for $1,000. The company claim that numerous errors were committed. It is first expedient to observe what the issue was on which the parties went to trial, because the controversy is to be confined to the issue, and the recovery is to follow it.

Reason and good sense, as well as law, compel the plaintiff, by his declaration in these cases, to inform the defendant and the tribunal what the complaint is, and he must not only show that the defendant has been negligent, but must further show in what respect. The matter of negligence to which the injurious consequences is referred must be properly averred. Gemtret v. Egerton, L.R. 2 Com.P. 371.

The declaration here is framed in view of this principle, and no complaint has been made of any lack of particularity. It assumes to state in what respect the railroad company was considered negligent, and set forth what matters were relied on as cause of the grievance. The averment is that "the death of said Joseph Marcott was caused by the running of the cars of the defendant upon said twentieth day of September, 1877, and by the failure and neglect of said defendant to give the signals required by the statutes of this state to be given [41 Mich. 436] at street crossings and other places, and by carelessly and negligently running said train of cars at a high rate of speed, that was careless and negligent, and forbidden by the statute of the state in such cases made and provided." The construction of this averment, most favorable to defendant in error, is that it charges that the company neglected some signal it was required to give by statute, and run the train at a rate of speed so high as to be negligent running.

The plaintiff, by his declaration, confined his cause of action to those two articles of negligence.

No other delinquency was imputed as conducive to the injury, and there has been no foundation proving others against the company.

Another feature of the case should be noticed here. The bill of exceptions states expressly that the counsel for the company told the jury, in summing up, that their verdict should be for defendant in error, in case they found the company did not exercise reasonable care...

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41 practice notes
  • 273 N.W. 749 (Mich. 1937), 40, O'Rourke v. Deffenbaugh
    • United States
    • Michigan Supreme Court of Michigan
    • 7 Junio 1937
    ...certainty. The same rule was laid down in Henry v. Railway Co., 49 Mich. 495, 13 N.W. 832, and Marquette, etc., Railroad Co. v. Marcott, 41 Mich. 433, 2 N.W. 795. In Ives v. Williams, 53 Mich. 636, 19 N.W. 562, it was held a failure to demur would not allow the scope Page 751 of a declarati......
  • 88 N.W.2d 456 (Mich. 1958), 69, McKay v. Hargis
    • United States
    • Michigan Supreme Court of Michigan
    • 5 Marzo 1958
    ...plaintiff's and defendant's requests to charge and labeling them as such (see Marquette, Houghton & Ontonagon Railroad Co. v. Marcott, 41 Mich. 433, 2 N.W. 795; Schattilly v. Yonker, 347 Mich. 660, 81 N.W.2d 343), [351 Mich. 422] on the whole, we found the charge complete and fair, and ......
  • 272 N.W. 713 (Mich. 1937), 88, Pulford v. Mouw
    • United States
    • Michigan Supreme Court of Michigan
    • 21 Abril 1937
    ...record and not by inaccurate quotations. 'Counsel's contradiction of the record is of no force.' Marquette, H. & O. R. Co. v. Marcott, 41 Mich. 433, 2 N.W. 795 (syllabus). Appellants moved for a new trial and argue that the verdict of the jury is against the overwhelming weight of the e......
  • 48 S.W. 492 (Ark. 1898), McFalls v. State
    • United States
    • Arkansas Supreme Court of Arkansas
    • 3 Diciembre 1898
    ...106. The court gave contradictory instructions, which was error. Wells, Questions of Law and Fact, 36, 37; 53 Ark. 117; 58 Ark. 473, 480; 41 Mich. 433. In capital cases, at least, it is error to allow the jury to separate after the cause is submitted. 12 Ark. 782; 34 Ark. 341; 44 Ark. 115; ......
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41 cases
  • 273 N.W. 749 (Mich. 1937), 40, O'Rourke v. Deffenbaugh
    • United States
    • Michigan Supreme Court of Michigan
    • 7 Junio 1937
    ...certainty. The same rule was laid down in Henry v. Railway Co., 49 Mich. 495, 13 N.W. 832, and Marquette, etc., Railroad Co. v. Marcott, 41 Mich. 433, 2 N.W. 795. In Ives v. Williams, 53 Mich. 636, 19 N.W. 562, it was held a failure to demur would not allow the scope Page 751 of a declarati......
  • 88 N.W.2d 456 (Mich. 1958), 69, McKay v. Hargis
    • United States
    • Michigan Supreme Court of Michigan
    • 5 Marzo 1958
    ...plaintiff's and defendant's requests to charge and labeling them as such (see Marquette, Houghton & Ontonagon Railroad Co. v. Marcott, 41 Mich. 433, 2 N.W. 795; Schattilly v. Yonker, 347 Mich. 660, 81 N.W.2d 343), [351 Mich. 422] on the whole, we found the charge complete and fair, and ......
  • 272 N.W. 713 (Mich. 1937), 88, Pulford v. Mouw
    • United States
    • Michigan Supreme Court of Michigan
    • 21 Abril 1937
    ...record and not by inaccurate quotations. 'Counsel's contradiction of the record is of no force.' Marquette, H. & O. R. Co. v. Marcott, 41 Mich. 433, 2 N.W. 795 (syllabus). Appellants moved for a new trial and argue that the verdict of the jury is against the overwhelming weight of the e......
  • 48 S.W. 492 (Ark. 1898), McFalls v. State
    • United States
    • Arkansas Supreme Court of Arkansas
    • 3 Diciembre 1898
    ...106. The court gave contradictory instructions, which was error. Wells, Questions of Law and Fact, 36, 37; 53 Ark. 117; 58 Ark. 473, 480; 41 Mich. 433. In capital cases, at least, it is error to allow the jury to separate after the cause is submitted. 12 Ark. 782; 34 Ark. 341; 44 Ark. 115; ......
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