Rhoades v. Chicago & G.T.R. Co.

• Citation: 25 N.W. 182,58 Mich. 263
• Parties: RHOADES v. CHICAGO & G.T. RY. CO.
• Decision Date: 28 October 1885
• Court: Supreme Court of Michigan

25 N.W. 182

58 Mich. 263

RHOADES v. CHICAGO & G.T. RY. CO.

Supreme Court of Michigan

October 28, 1885

Error to Cass.

Edward Bacon, for plaintiff and appellant.

E.W Meddaugh and H. Geer, for defendant.

CAMPBELL, J.

This action was brought to recover damages for the death of plaintiff's intestate, who was killed by an express train of defendant in the afternoon of December 11, 1882, at a cross-road not far from Edwardsburg. The deceased had been at Edwardsburg with a buggy drawn by a horse and a mule, and was returning on a north and south road, which crossed the railway at a somewhat acute angle, when a train, which had passed Edwardsburg, and was going southerly towards the crossing, struck his team on the crossing and killed him and one of his animals. It was claimed by plaintiff that the train did not give the proper signals, so as to inform him of its coming, and that, when he was near the crossing, and the cars were rushing up behind him, a series of sudden sharp whistles frightened his team, and made them unmanageable, so that they ran upon the track in spite of his efforts to hold them. The defense relied on lack of fault or neglect in the defendant's servants, and on the negligence of the deceased.

There was contradictory testimony concerning the statutory signals some persons swearing that they were given, and some that they were not. Most of the latter was, of course, negative testimony to the effect that the witnesses did not hear the signals. One witness swore that he saw the bell, and that it was not moving. The fact that sudden and repeated loud whistles were given, and frightened the animals was shown by testimony which was positive. We cannot hold, as we were asked to hold, that where positive proof is met by negative proof, the former must govern. The testimony, if it conflicts, must go to the jury, unless under possible peculiar circumstances, which do not usually arise. We have no doubt that, upon the question of defendant's negligence, these were facts for the jury, whatever we may ourselves think of the weight of testimony; and if that were the only issue, we should feel bound to hold that the court below erred in taking the case from the jury and ordering a verdict for the defendant.

But upon the question of contributory negligence there is such positive testimony given by the plaintiff's own witnesses as to leave no room for dispute. It appeared from the testimony that the train in question was not a stray or irregular one, but a fast train that might fairly be expected at the time when it came.

It further appeared that the view of any such train was substantially unobstructed for a long distance along the road on which deceased was traveling, so that by turning his head at any...