25 Mich. 274 (Mich. 1872), The Lake Shore & Michigan Southern Railroad Co. v. Miller

Citation:25 Mich. 274
Opinion Judge:Christiancy, Ch. J.
Party Name:The Lake Shore & Michigan Southern Railroad Company v. Mary J. Miller
Attorney:Warner Wing and John B. Niles, for plaintiff in error. E. G. Fuller, for defendant in error.
Case Date:July 10, 1872
Court:Supreme Court of Michigan

Page 274

25 Mich. 274 (Mich. 1872)

The Lake Shore & Michigan Southern Railroad Company


Mary J. Miller

Supreme Court of Michigan

July 10, 1872

Heard May 15, 1872; May 16, 1872.

Error to Branch Circuit.

Judgment reversed, with costs, and a new trial awarded.

Warner Wing and John B. Niles, for plaintiff in error.

E. G. Fuller, for defendant in error.


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Christiancy, Ch. J.

The defendant in error sued the railroad company in the Circuit Court for the County of Branch, in an action upon the case for injuries received by her in a collision between the locomotive of a passenger train and the wagon in which she was riding with one Eldridge, the owner of the team and wagon, who was driving, or undertook to drive,

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across the railroad track at the crossing of a highway; claiming that the collision took place and the injury was caused by the negligence of the company. The negligence of the company mainly relied upon, consisted in their having their wood so piled as to obscure the view of the track, and trains coming from the west, from persons approaching the crossing along the highway, and to prevent their hearing the sound of such trains as plainly as they otherwise would; and it was also claimed on the trial, that the bell of the locomotive of this train was not rung on the approach to the crossing. And, though there was some evidence on the part of the plaintiff tending to show this, most of her witnesses merely saying they did not hear or notice the bell, but some of them stating that it was not rung, the evidence on the part of the defendant was so overwhelming and convincing to the contrary, that the judge, in giving the case to the jury, remarked that it seemed to him that, under the evidence, the ringing of the bell could hardly be seriously questioned; but that he left it to the jury, etc. This remark was well warranted, and the evidence was such that, if the specific question had been left to the jury, and they had found the bell was not rung, the court should have promptly set aside the verdict.

The train, though from fifteen to thirty-five minutes behind time, was not running at an unusual speed; and there was no evidence to show, nor was it seriously claimed on the trial, that after the team was, or could be, seen by the engineer, there was any negligence, or failure to use any proper means for checking the train and avoiding the collision; in fact, the evidence plainly and conclusively showed, that no possible diligence could have enabled the engineer to avoid the collision, after seeing the team. So that the only negligence which can be claimed in the mode of running the train, must rest upon the ground that the

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company, having obscured the view and deadened the sound of the approaching train, by the mode of piling their wood, were bound for that reason, to run at much less than their usual rate of speed in approaching that crossing, or to keep a flagman there, or use some other extra means to warn people traveling the highway, of the approach of trains from the west. The materiality of this question must depend upon another: whether the plaintiff's own negligence, or that of Eldridge, who was driving the team, contributed to the injury, within the meaning of the generally settled rule upon this subject; for, as she was riding with Eldridge, the owner and driver of the team, any negligence of Eldridge equally affects her rights in this suit, as was properly held by the court.

The law is too well settled by the overwhelming weight of authority, both in England and the United States, to be now disputed, that, in an action like this, to recover for an injury arising from negligence of the defendant in carrying on their lawful business without wanton or intentional wrong, the plaintiff can not recover if his own negligence directly or proximately contributed to produce the injury, though the defendant's negligence may also have concurred in producing the result. This rule, it is true, often, and perhaps generally, fails to produce justice; and, upon abstract principles of right and wrong, may be said to be frequently unjust in its operation. Justice might seem to require that each should bear the loss in the proportion they had respectively contributed to the injury. But precisely here lies the difficulty, which is inherent in the nature of the subject, and the infirmity necessarily incident to all human administration of justice,--the impossibility of ascertaining what portion of the injury was produced by the negligence of the one, and what, by that of the other, and in apportioning to each his just share of

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liability. Courts of admiralty, in cases of collision, when the injury has happened from negligence or want of skill on both sides, have adopted from the maritime law, the principle, that the loss shall be sustained equally by both. See Abbott on Shipping, 229, to 231, and notes. But, though this may more nearly approximate justice in many cases, it yet fails to apportion the loss according to the degree of negligence in each; and the principle has never been adopted by the common law, which looks upon parties guilty of negligence in such cases as wrong-doers, and, upon the ground, as it would seem, that no man shall take advantage of his own wrong, refuses to enforce contribution among joint wrong-doers, and in an action against several, will not sever or apportion the damages, though one defendant is more culpable than another. There are, it is true, some recent cases in Illinois which seem to have adopted the principle that, though the plaintiff has been guilty of some negligence, but slight, in comparison with that of the defendant, he may still recover: St. Louis, Alton & Terre Haute R. R. Co. v. Todd, 36 Ill. 409; Coursen v. Ely, 37 Ill. 338; Chicago & Alton R. R. Co. v. Hogarth, 38 Ill. 370; Chic., B. & Q. R. R. Co. v. Triplett, Id., 482. But they admit that no fixed rule can be laid down, and each case must depend on its own circumstances. Except in so far as these cases can be sustained on the ground presently mentioned, where the defendant's negligence can be treated as the proximate cause, this doctrine must be considered a departure from the common law. The result may be in some cases a nearer approximation to justice than the common-law rule. But whether this be so or not, the common-law rule is settled in this State, and most of the other States, and we do not feel at liberty to disturb it: Williams v. M. C. R. R. Co., 2 Mich. 259.

It is true there are some apparent qualifications or

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exceptions to this rule (that a party whose negligence has contributed to the injury can not recover); thus, though the plaintiff is in fault by negligently driving upon the track of a railroad, or not using due diligence to get out of the way, yet, if he be seen by the engineer in time to avoid the injury by reasonable diligence in checking the train, the failure to do so would be treated as the proximate cause of the injury, if, from what the engineer could see, he had good reason to believe the plaintiff could not, or was not likely to, get off in time, or did not seem to be aware of the danger, and was therefore making no effort to avoid it. But if an engineer see a team and carriage, or a man, in the act of crossing the track far enough ahead of him to have ample time, in the ordinary course of such movements, to get entirely out of the way before the approach of the engine, or if he sees a man walking along upon the track at a considerable distance ahead, and is not aware that he is deaf or insane, or from some other cause insensible of the danger, or if he sees a team or man approaching a crossing too near the train to get over in time, he has a right to rely upon the laws of nature and the ordinary course of things, and to presume that the man driving the team or walking upon the track, has the use of his senses, and will act upon the principles of common sense and the motive of self-preservation common to mankind in general, and that they will, therefore, get out of the way; that those on the track will get off, and those approaching it will stop, in time to avoid the danger; and he therefore has the right to go on, without checking his speed, until he sees that the team or the man is not likely to get out of the way, when it would become his duty to give extra alarm by bell or whistle, and if that is not heeded, then, as a last resort, to check his speed or stop his train, if possible, in time to avoid disaster.

If, however, he sees a child of

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tender years upon the track, or any person known to him to be, or from his appearance giving him good reason to believe that he is, insane, or badly intoxicated, or otherwise insensible of danger, or unable to avoid it, he has no right to presume that he will get out of the way, but should act upon the belief that he might not, or would not, and he should therefore take means to stop his train in time. A more stringent rule than this--a rule that would require the engineer to check his speed or stop his train, whenever he sees a team crossing the track or a man walking on it, far enough ahead to get out of the way in time, until he can send ahead to inquire why they do not; or which would require the engineer to know the deafness or blindness, or acuteness of hearing or sight, or habits of prudence or recklessness, or other personal peculiarities of all those persons he may see approaching, or upon the track, and more especially of all those who may be approaching a crossing upon the highway, though not seen--any such rule, if enforced, must effectually put an end to all railroads, as a means of speedy travel or transportation, and reduce the speed of trains below that of canal-boats forty years ago; and would effectually defeat the...

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