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

• Decision Date: 08 October 1879
• Citation: 2 N.W. 795,41 Mich. 433
• Parties: MARQUETTE, HOUGHTON & ONTONAGON RAILROAD CO., Plaintiff in Error, v. GILBERT MARCOTT, Administrator, etc., Defendant in Error.
• Court: Michigan Supreme Court

2 N.W. 795

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.

F.O. Clark, for defendant in error.

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 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 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. The counsel has printed a note denying the accuracy of this passage in the record, and giving a reason for not having moved to correct it. This note is of no force, certainly, and the suggestion that, supposing the observation to have been made, it was merely an admission of law, is a suggestion not sufficient to explain away the effect. The court must consider that the concession was, in fact, made as represented in the bill of exceptions, and, as a consequence, must hold that the plaintiff in error is not entitled to take any ground inconsistent with it.

After submitting to the jury to have the case go one way or the other, as they should find, on consideration of the evidence, that the company was or was not negligent in the particular respects charged, it is not competent to assume a discrepant position or claim to have been injured by rulings only bearing on points which the concession put out of controversy.

There was no material disagreement between the statements made by the witnesses on one side, and such as were made by witnesses on the other, except as to the speed at which the train was running, and as to whether there were signals by bell or whistle at the passage of the highway and station building. The general descriptive features have not been the subject of difference.

The accident occurred about one-third of a mile west of the station building or depot at Champion, and between nine and ten o'clock in the forenoon. This station building is one of a little cluster, not far apart, embracing a store and two or three dwellings, and about 150 feet east a highway, communicating with mines in one direction and with Michigamme in the other, crosses the railroad. About 200 feet east of this crossing a side track connects with the main one by a sharp curve, and about 700 feet west of the crossing unites with the main track by another sharp curve.

Somewhat remote from the track is a charcoal kiln, a furnace, and two or three mines. The track passes westerly, and nearly a third of a mile that way, and just before it reaches a forest of several miles in extent, through which it runs, there is another little cluster of erections, comprising six dwellings. One stands on the northerly side and a few feet west of the rest. The other five are in a row on the south side, facing the track, and only a few feet from it, the most westerly being Marcott's. The little groups here mentioned, together with others away from the track and belonging to the station or mine location called Champion there being no village organization, contains,...