Mynning v. Detroit, L. & N.R. Co.

• Citation: 26 N.W. 514,59 Mich. 257
• Parties: MYNNING v. DETROIT, L. & N.R. Co.
• Decision Date: 20 January 1886
• Court: Supreme Court of Michigan

26 N.W. 514

59 Mich. 257

MYNNING v. DETROIT, L. & N.R. Co.

Supreme Court of Michigan

January 20, 1886

Error to Mecosta.

Andrew Hanson and W.W. Mitchel, for plaintiff.

Palmer & Palmer, for defendant and appellant.

SHERWOOD, J.

This is an action on the case, brought by the plaintiff against the defendant, under the statute, to recover damages occasioned by the death of Phillip A. Mynning, alleged to have been caused by the negligence of the defendant. The accident occurred at Big Rapids, on the thirtieth day of October 1882, about 7 o'clock in the evening. The party killed was walking down Baldwin street, in the city. He came upon the railroad crossing, and at that moment was struck by the car in a train which was backing across the street with a load of lumber, and was instantly killed. The particular acts of negligence alleged, and which are relied on to charge the company, consisted: "First, in the omission to ring the bell or sound the whistle when approaching and crossing the said street; second, in running the train backward at a high and dangerous rate of speed; third, in not having any head-light upon the said engine; and, fourth, in not having any light at or upon the rear end of the train." The deceased left surviving him a widow and two minor, and three adult, children; and the declaration alleges that by reason of the death the widow and minor children have been deprived of their means of support. The trial was had in the Mecosta circuit in May, 1885, and resulted in a verdict for the plaintiff for the sum of $5,000, upon which judgment was duly entered. The defendant brings error. The record contains all the evidence in the case. No exceptions were taken to the rulings of the court in receiving or rejecting testimony. They all relate to the charge as given by the court, and to his refusal to charge as requested.

The last two requests of the defendant's counsel substantially ask the court to direct a verdict for the defendant. They were both refused, and we think properly so. The case upon the facts was not free from doubt, and the court did right in submitting it to the jury. There was testimony in the case tending to show that no signals were given, and it is not clear that the injured party did not look and listen for the train. The night was dark and stormy and these are circumstances which must be considered in passing upon the evidence. Besides those I have alluded to all the requests of defendant were substantially given by the court except three, and these, I think, the defendant was entitled to have given as requested. Some portions of them were given in the charge, but in such a disconnected manner as to seriously impair the force to which they were entitled before the jury. They are as follows:

"(2) That negligence is not to be presumed, but must be affirmatively proven by the party alleging it, and in the manner alleged in the declaration in the case; and in this case the burden of proof is upon the plaintiff to show that the defendant is entirely responsible for the injury complained of by reason of and in consequence of the neglect charged in the declaration, and that the plaintiff's intestate did not contribute towards it."

"(7) The track itself is a warning of danger to those who go upon it, and persons about to cross a railroad track are bound to recognize the danger, and to make use of the sense of hearing as well as of sight, and if either cannot be rendered available the obligation to use the other is the stronger, to ascertain before attempting to cross it whether a train is in dangerous proximity; and if they neglect to do this, but venture blindly or carelessly upon the track, without any effort to ascertain whether a train is approaching, it must be at their own risk. Such conduct is of itself negligence.

"(8) The doctrine of comparative negligence in actions of this kind, as recognized by the courts of some of the other states, is not adopted or recognized by our court, and therefore cannot be applied to this case."

These requests state the law as recognized and approved by this court, and the refusal to give them as requested was error. Detroit & M.R. Co. v. Van Steinburg, 17 Mich. 119; Lake Shore & M.S.R. Co. v. Miller, 25 Mich. 274; Michigan Cent. R. Co. v. Coleman, 28 Mich. 447; Haas v. Grand Rapids & I.R. Co., 47 Mich. 408; S.C. 11 N.W. 216, Wood v. Detroit City R. Co., 52 Mich. 402; S.C. 18 N.W. 124; Pzolla v. Michigan Cent. R. Co. 20 N.W. 71; Palmer v. Detroit L. & N.R. Co., 56 Mich. ----; S.C. 22 N.W. 88; Hathaway v. Michigan Cent. R. Co., 51 Mich. 253; S.C. 16 N.W. 634.

The eleventh assignment of error was not pressed upon the argument, and need not be further noticed.

The crossing where the intestate was killed was upon a siding of defendant's road, extending some distance from the main track, to a lumber-mill. The testimony tended to show that this siding was used more or less every day, and that the intestate knew that fact, and was familiar with the crossing and had been for many years, passing at the point daily; and the court, in his instruction to the jury, said to them: "Now, gentlemen, we have heard in the argument on the law in this case, and it is the law, that ordinarily a railroad track in and of itself is a sign of danger. The main line of a railroad track may be so considered; but I do not think, gentlemen, that necessarily a side track,...