34 Mich. 506 (Mich. 1876), Grand Rapids & Indiana Railroad Co. v. Judson

Citation:34 Mich. 506
Opinion Judge:Campbell, J
Party Name:The Grand Rapids & Indiana Railroad Company v. Robert F. Judson
Attorney:Hughes, O'Brien & Smiley, for plaintiff in error. Severens, Boudeman & Turner, for defendant in error.
Case Date:October 10, 1876
Court:Supreme Court of Michigan
 
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Page 506

34 Mich. 506 (Mich. 1876)

The Grand Rapids & Indiana Railroad Company

v.

Robert F. Judson

Supreme Court of Michigan

October 10, 1876

Heard June 21, 1876

Error to Kalamazoo Circuit.

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

Hughes, O'Brien & Smiley, for plaintiff in error.

Severens, Boudeman & Turner, for defendant in error.

OPINION

Page 507

Campbell, J

Suit was brought to recover damages for injuries to a mare and colt in the village of Kalamazoo. One count claimed the injury to have arisen from neglect to keep up proper cattle guards. The other charged negligence in running the trains.

So far as the latter is concerned, the only testimony in the case showed that the train in question was run in the usual way and with the usual precautions. As negligence cannot be presumed, but must be affirmatively proved, and as it cannot be presumptively negligent to run in the usual manner, without proof that such usual manner is itself improper (which can rarely happen), the defendant below was entitled to a charge that this cause of action was not made out.

Upon the the question of the cattle guard, there was some testimony not objected to and not stricken out which had some tendency to show the cattle guard was insufficient. Inasmuch as all the testimony of persons acquainted with the construction of cattle guards swore to its sufficiency, and the evidence was very conclusive that the mare

Page 508

was caught in it in a way which showed it was very different from what some witnesses had represented it, there is reason to believe a more complete cross-examination would have been desirable. But whatever may be our view of the weight or quality of this testimony, it is not clearly shown to have been based on guess-work and not on knowledge, and we cannot, therefore, hold that it was not open to the jury.

We do not think it error for the court to refuse to put the case to the jury upon the testimony of a single witness, or to decline instructing them that if they believe such a witness...

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