Mynning v. Detroit, L. & N.R. Co.
| Citation | 31 N.W. 147,64 Mich. 93 |
| Parties | MYNNING, Adm'r, etc., v. DETROIT, L. & N.R. CO. |
| Decision Date | 06 January 1887 |
| Court | Supreme Court of Michigan |
Error to Mecosta.
Action for damages for death caused by negligence. Judgment for plaintiff. Defendant appeals.
Andrew Hanson, for plaintiff.
Palmer & Palmer, for defendant and appellant.
On the thirtieth day of October, 1882, as Phillip A. Mynning was crossing a spur track of the defendant, he was run over by a train of cars and killed. The accident occurred while he was walking along one of the public streets in the city of Big Rapids, between 6 and 7 o'clock in the evening. At this time it was quite dark. A rain-storm was approaching, with considerable wind from the south-west. The deceased was walking rapidly east, and the train was backing from the north. This action is brought by the administrator of deceased to recover damages for the wrongful and negligent killing of Phillip A. Mynning. After averring the duty of the railroad company in the running and management of its trains at the point in question, the negligence claimed is set out in the following language, namely: "Running said locomotive engine, with a train of freight cars attached backward, and at a high and dangerous rate of speed, in the dark, without giving any signals by sounding the whistle or ringing the bell, and without having any light at or upon the rear end of said train of freight cars attached to said locomotive engine, or any head-light upon said engine, to warn people who were crossing, or about to cross, said spur or side track of said defendant, running over and crossing said Baldwin street, of the approach of said locomotive engine, with a train of freight cars attached, and so that the employes of said defendant upon said locomotive engine and upon said train of freight cars attached, who were operating and managing said locomotive engine, and the said train of freight cars attached, could see persons who were crossing, or about to cross, the said spur or side track of said defendant where the same crosses said Baldwin street, by reason whereof the said Phillip A. Mynning, who was lawfully walking along said Baldwin street at the point where said spur or side track crosses the same, and while he was in the exercise of due and proper care, and without fault or negligence on his part, was struck and run over by said freight cars attached to said locomotive engine, so willfully, recklessly, wrongfully, and negligently run and operated by said defendant, as aforesaid, whereby, and by reason whereof, the said Phillip A. Mynning was then and there, to-wit, at the city of Big Rapids, in said county of Mecosta, on the day and year aforesaid, struck by said freight cars attached to said locomotive engine, and instantly killed."
The testimony introduced upon the trial respecting the defendant's negligence was conflicting, and consequently, upon that point, was a proper question for the jury to determine. The main question in the case, however, turns upon whether the deceased was himself in the exercise of ordinary care at the time of the accident, and whether he did not, by his own careless or negligent conduct, or by the neglect to exercise due care contribute to the injury complained of. After the testimony on behalf of the plaintiff was closed, the defendant orally demurred to the evidence, and moved the court to direct the jury to find a verdict for the defendant, on the ground that the plaintiff's evidence established affirmatively and conclusively that plaintiff's intestate was wanting in due care, and that his own negligence contributed to his death. The court declined to hear argument, and overruled the motion. The testimony subsequently introduced did not in any respect vary the probative force of that given upon this point when plaintiff closed his case. Defendant's counsel again requested the court to instruct the jury that, under the evidence in the case, the injured or deceased person was guilty of contributory negligence, and their verdict must be for the defendant.
The testimony is all returned in the bill of exceptions, and it is proper that this question should be considered first; for, if the point is well taken, it virtually disposes of the case, and the other errors assigned become unimportant. Counsel for plaintiff claims that it does not lie within the province of the trial judge to take the case from the jury, but that it is the privilege and right of the jury to judge of the sufficiency of the evidence introduced to establish any one or more facts in the case upon trial. As a general proposition, this is true; but, when there is a total defect of evidence as to any essential fact, the case should be withdrawn from the consideration of the jury. Conely v. McDonald, 40 Mich. 158. The motion made at the close of the plaintiff's proofs raised precisely this question: Whether, taking all the testimony introduced by plaintiff as true, and all legitimate inferences to be drawn therefrom, there was any evidence tending to prove that the deceased was in the exercise of ordinary care at the time of the accident; the defendant claiming that it affirmatively appeared from such testimony that the negligence of the deceased contributed to the accident which resulted in his death. This raised a question of law, which it was the duty of the trial judge to decide. If, at the time the plaintiff closed his proofs, there was no evidence upon a material point in issue upon which the plaintiff had the burden of proof, or if it affirmatively appeared by his own showing that he had no cause of action upon the undisputed testimony introduced by him, the defendant was entitled, at that stage of the case, to a direction from the court to the jury to find a verdict for the defendant. Equally so, under the same circumstances, was defendant entitled to such direction after all the evidence was introduced. It is the duty of the judge when asked to do so, before submitting the case to the jury, as a preliminary question of law, to decide whether there is any evidence on which the jury could properly find a verdict for the party on whom the onus of proof lies; and, if there is not, he ought to withdraw it from the jury. Carver v. Detroit & Saline Plank-road Co., --- Mich. ----; S.C. 28 N.W. 721. The ruling of the court denying the motion, and refusing the request to charge, renders it necessary to examine fully the testimony introduced upon the trial in order to determine whether error in law was committed by such ruling.
The Muskegon river runs nearly south through the city of Big Rapids. Baldwin street runs east and west, and is connected on either side of the Muskegon river by a bridge. A mill-race leading from the river, north of Baldwin street, crosses the street about 150 feet east from the bridge. The spur track of the defendant extends, from a point south to the mills, along the race, and to the river above the mills, and at the point where it crosses Baldwin street is between the race and river,--about 55 feet from the race, and 90 feet from the river. On the night of the accident there was a lamp at the east end of the bridge over Muskegon river, which was lighted. In approaching the railroad track from the west, there was nothing to obstruct the view of Baldwin street for a distance of about 400 feet. The train had been made up north of Baldwin street, and consisted of box cars and flat cars laden with lumber,--11 in all. The deceased, at the time of the accident, resided about one mile east of the city, but had lived in the city, and was familiar with the railroad crossing at Baldwin street. Three witnesses were introduced by plaintiff who saw the accident. Two of these, Mr. Wakeman and Mr. Trafford, were walking west on Baldwin street. When they were upon the bridge which spans the mill-race, and about 55 feet from the crossing, they saw the train approaching from the north. They testify that a person with a lighted lantern was upon the rear car, swinging the light as if signaling. The train was in rapid motion, and neither heard the sound of bell or whistle. They both saw Mr. Mynning approaching the crossing from the west. He was then about 20 or 30 feet from the crossing, walking rapidly, bent a little forward, as was natural to him, with his head down. He did not pause, or look to the left or right, but kept on, and stepped upon the crossing, and was struck by the rear car, and taken from their sight. The opportunity of these witnesses for observation was aided by the lamp which shone from the end of the bridge; the deceased being between them and the light. They were looking at him from the time they first saw him until he was struck by the train. The other witness was John McLaughlin. He was walking east on Baldwin street, and saw Mynning about 75 feet ahead of him, as he was crossing the bridge. As he came off of the bridge, Mynning was 25 to 30 feet from him, and he saw Mynning walk right in front of the train, and saw it strike him. He saw the train before it struck Mynning, and stopped. He testifies that Mynning did not stop on approaching the crossing; that he was looking at him, and did not see him look either way, but he walked pretty fast. Thomas P. Mortenson did not see the accident, but was approaching the crossing on Baldwin street, going east, when the train passed. He had a horse and buggy. When he came to the end of the bridge, his horse stopped, and he looked up, and saw the train crossing...
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