Battishill v. Humphery

• Decision Date: 27 January 1887
• Citation: 31 N.W. 894,64 Mich. 494
• Court: Michigan Supreme Court
• Parties: BATTISHILL, by her Next Friend, v. HUMPHERY and another, Receivers, etc.

31 N.W. 894

64 Mich. 494

BATTISHILL, by her Next Friend, v. HUMPHERY and another, Receivers, etc.

Supreme Court of Michigan

January 27, 1887

Error to Wayne.

Suit by infant plaintiff to recover damages for injuries received by negligence of defendants in running train.

Griffin & Warner, for plaintiff.

Alfred Russell, for defendants and appellants.

MORSE, J.

This is an action for damages for personal injuries sustained by plaintiff, by reason of an accident to her, July 8, 1884, at Summit-avenue crossing, Spring Wells, near Detroit. The Wabash, St. Louis & Pacific Railway was at this time operated by receivers, and the accident is charged to the negligence of their employes. Plaintiff was a child about three years of age. Her father and mother lived on Ferdinand street, a block next west of Summit avenue, and were poor people. The father at the time of the injury, was away at work, and the mother had gone down town for groceries. She left the child at home with her father, an old gentleman and an invalid. He was 79 years of age; and, when the mother went away, he was lying down in bed, and the child was in the room with him playing with a kitten. The mother left the house at half-past 2 P.M and returned a quarter before 6. She testified that she expected the grandfather to look after the child. At the time of the trial the old man was at his son's residence in Kingsville, Canada, and was not a witness. The parents lived 150 feet from the railroad track south, on Ferdinand street or avenue. The track of the railway of the defendant runs east and west across Ferdinand street, Summit avenue, and Clark avenue, as shown by the diagram hereto attached. The Fort Wayne & Elmwood Street Railway, upon which the child's father was a car conductor, ran along Clark avenue, crossing defendant's road. At this crossing a flag-man or watchman was stationed by the railroad company. When he saw the train three miles away, it was his duty to stand on the crossing with his flag. He had a clear view up to Summit avenue, and the train could be seen at a distance of two and onehalf miles. There was no flag-man on Summit avenue, and no gate there. The child left the house, and went upon the track of the company, and was picked up, after the accident, at the spot indicated upon the diagram.

RPT.CC.1887143218.00010

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE Two witnesses, sworn on the part of the plaintiff, saw the accident. Frank Brandt was unloading cinders from a car standing on a side track a little ways from Clark avenue, about a block west of Summit avenue. Was standing on the car. The train came from the west. He saw it when about half a block away from the child, who was on the track. She was run over. The cars did not stop after the accident. They were on the main track, the engine was backing, with the tender foremost. Five cars were attached. The engineer and fireman were on their seats as they passed. "The flag-man was standing on Clark avenue. He saw the child. He did not signal the train. The train was going about as fast as a horse could trot when I first saw it,--about five or six miles an hour. There was no bell rung or whistle blown at the crossing at Summit avenue, nor any signal given to the child that I heard. The first signal that I heard was when they whistled for Clark avenue, after the accident." George Lewis, a boy 10 years old, was on the fence by Mr Battishill's house. Saw Maud first playing in the dirt road; saw her go on the track. He saw the train coming a block west from her, and ran to her, and tried to pull her off the track. She was trying to cross the culvert, going east. He got hold of her by the arms, but her stocking caught on the spikes. The train ran over her leg, cutting it off. She would have been killed had he not pulled her away. The train was going about as fast as witness could run. Other testimony was given, on plaintiff's behalf, that the engine was backing towards the east with the smoke-stack of the engine towards the cars; that no bell was rung or whistle blown until after the little girl was run over. Then the whistle was blown for Clark avenue.

Thomas Melosh, the flag-man, was sworn on the part of the defendant and testified that 15 or 20 minutes before the accident he saw the child, Maud, playing with other children upon the railroad track, within the inclosed premises of the company, between Summit and Clark avenues; that he frightened them away, and they went across the commons towards Battishill's house. He further testified that he was stationed on Clark avenue to save accidents. It was a pleasant day in July, and the sun was shining. Standing west of the crossing with his flag in his hand, he has a clear view of either side of the railroad up to Summit Avenue. "Can see every point on the road, and every point on each side of the road." He was asked, on cross-examination, the following question: "Question. Did you say to Mr. Brandt, when the train was coming, and you saw the child upon the track, or, looking in that direction, did Mr. Brandt ask you to wave your flag, and check the train, and did you say: 'Damn the child,' or 'damn the children; let them get run over. I would not care if a hundred of them were run over?' Answer. If you want, I will ask you a good question on that what I have done." This question was objected to by defendant's counsel on the ground that what he said or did would not bind the receivers; that it was irrelevant, immaterial, and incompetent; it was no part of the res gestae, and not connected with the accident in any way; it did not come under the plaintiff's declaration. The court then said that he thought counsel was right upon that point; but he assumed, from the manner the question was put, that it was for the purpose of showing the witness' mind and feeling upon the subject and subject-matter upon which he had been testifying. He thought it competent for that purpose, as the witness' feeling might bear upon his credibility; but any such expression of his could not bind the company. The counsel for plaintiff, Mr. Griffin, said: "Mr. Griffin. It affects his credibility entirely. Your honor related the rule correctly--that his statement was not evidence--when we offered it as a part of our case; but, if the witness made the statement, then his whole testimony is injured. There is no doubt about that. If he made the statement, his whole testimony is untrue. It is for the purpose of showing that when he says that he did not see this child upon the track, and that she stumbled headlong and head-first in under a box car--It is for the purpose of showing that he not only saw her, but his attention was called to it, and he was asked to wave his flag, and he expressed himself in the way he did, indicating that he saw the child, but that he did not care enough about it to wave the flag. The Court. I think the question is competent. [ Exception for defendant.] Mr. Griffin. I will just modify the question a little by putting something in front of it. [ The question is withdrawn for the present.] Question. Will you state whether Mr. Brandt called your attention to the child upon the track previous to the time the train reached it, and asked you to wave your flag, and check the train, and did you say: 'Damn the child,' or 'Damn the children; let them get run over. I wouldn't care if a hundred of them were run over?' Mr. Russell. I object to that question upon this ground: because there is no allegation in the declaration that it was the duty,--that there is no statement in the declaration that the flag-man saw the train coming, that it was his duty to flag the train and stop it, and that he omitted to perform that duty. The question is whether or not he was requested to wave the flag, and whether or not he refused, and said, 'Damn the children.' Your honor ruled in a case against the F. & P.M. Ry., and it was ruled by the supreme court in the case of Huntly v. The Grand Rapids & Ind., and in the case of Stark v. The Flint & Pere Marquette, that it was necessary to set out in the declaration the particular duty, and to negative the performance of the duty. My brother is trying to show that it was specially requested of this witness to stop that train by making a signal, and that he did not do it, and used opprobrious terms in refusing to do it; but he has not said a word in his declaration upon the subject. He has not advised us that he expected to show it, and I therefore object to it. The Court. You may put the question. [ Exception for the defendant.] Mr. Griffin. It has nothing to do with the res gestae whatever; it bears upon this witness' credibility merely. [ Question repeated.] Answer. No, sir; not those words,--never those words went out of my head. No, sir."

Upon rebuttal the witness Brandt was recalled by the plaintiff, and asked the following question: "Question. Mr. Brandt, did you call the attention of Mr. Melosh to the child upon the track, when the train was approaching it in an easterly direction, and did he say: 'Damn the kid; let her get run over. If a hundred of them would get run over, folks would learn to keep their children at home.' " This was objected to by defendant's counsel upon the same grounds stated when such inquiry was made of Melosh, and for the additional reason that it was not a contradiction of that witness upon a material point. The court replied to such objections that "it would not be evidence, on the res gestae, what that flag-man said, yet it was evidence as to the credibility," and permitted the question to be answered. The witness Brandt thereupon answered: "Yes."

The engineer testified, upon the part of the defendant, that he did not see the child, but could see as close to the tender as he...