Flint & Pere Marquette Railway Company v. Stark

• Decision Date: 04 June 1878
• Citation: 38 Mich. 714
• Court: Michigan Supreme Court
• Parties: The Flint & Pere Marquette Railway Company v. Philetus Stark, adm'r

38 Mich. 714

The Flint & Pere Marquette Railway Company v. Philetus Stark, adm'r

Supreme Court of Michigan

June 4, 1878

Submitted April 4, 1878

Error to Saginaw.

Trespass on the case. Defendant brings error.

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

Wm. L Webber and Benton Hanchett for plaintiff in error. A plaintiff cannot recover on evidence of negligence not alleged in the declaration, Lund v. Tyngsboro, 11 Cush. 563; Shaw v. Bost. & Worcester R. R. Co., 8 Gray 45; Wilbur v. Brown, 3 Den. 356; Parker v Rensselaer etc. R. R. Co., 16 Barb. 315; 1 Chitty's Pl 291, 376, 384-6; Tidd's Pr., 440, 444; Max v. Roberts, 12 East, 89; King v. Everett, 8 B. & C., 114.

Wisner & Draper for defendant in error.

OPINION

Cooley, J.

The defendant in error as administrator of Julia B. Stark brought suit against the railway company under the statute which gives an action to the personal representative of one whose death has been caused by the wrongful act, neglect or default of another. The death occurred at East Saginaw in September, 1875, in consequence of falling or being thrown under the cars while making the attempt to get upon them.

We learn from the record that the State fair was being held at East Saginaw at the time of the accident, and that the deceased, who was the wife of the plaintiff, had gone from her home in Birch Run to attend it. She expected to return by the cars of defendant, and the train she intended to take was advertised to leave at five o'clock. Some time before that hour the company's servants were engaged in moving cars and engines about the tracks, making up trains for freight and passengers. At fifteen minutes past four o'clock, and perhaps somewhat later, a train with engine attached was standing by the platform where passengers were accustomed to take the cars, and upon some of the cars were placards announcing that that train was for Flint and other points in the direction of Birch Run. The putting of these placards on the cars appears to have been a mistake, as the train was not intended for the south; and they were taken off when attention was called to them, though not until after the accident had occurred. Mrs. Stark seeing the train standing by the platform, and apparently supposing it to be the one she should take, started in haste to get aboard. The evidence all indicates that she was excited with the fear of being left. She was quite a large woman, fifty-six years of age, and was seriously encumbered with luggage, but with her left hand she took hold of the guard about the platform of one of the cars, and made the attempt to get aboard, a man on the platform taking hold of her right hand to assist her. The witnesses disagree as to whether the train was in motion before she made this effort, the defendant's witnesses testifying that it was, while the plaintiff's witnesses gave evidence that the train was moved with a sudden jerk just as Mrs. Stark lifted her foot to step upon the platform. Either because of the motion, or because Mrs. Stark's foot was caught in her dress, as some of the witnesses thought, the man who was endeavoring to assist her lost his hold, and she fell beneath the cars and was run over.

There was no dispute whatever that when the accident occurred it was still some time before the cars should leave; the lowest estimate placing it at twenty minutes. It seems also to have been proved beyond controversy that servants of the railway company called out several times to persons who seemed disposed to get upon the cars, that this train was not the train for them to take. There was also evidence from a number of witnesses that Mrs. Stark when eagerly rushing for the cars was expressly told by them or by others in their hearing that it was not yet time for the train to go, and was warned against the attempt to get aboard; but the jury for some reason put aside all this evidence, and expressly found that she was not warned at all. That she was excited, anxious and eager to get aboard in haste is not left in doubt by the evidence, and this eagerness it is somewhat difficult to account for except upon the theory of the defendant, that the train was actually in motion when she made the attempt, and that she feared being left. Several persons noticed her actions, and appear to have been alarmed for her safety.

The questions of law made on the argument are first Whether a prima facie case of negligence was made out against the railway company, and if so, then second, Whether a right of action is precluded by contributory negligence on the part of the...