45 N.W. 1110 (Mich. 1890), Brady v. Toledo, Ann Arbor & N.M.R. Co.

Citation:45 N.W. 1110, 81 Mich. 616
Opinion Judge:LONG, J.
Attorney:[81 Mich. 617] T. W. Whitney, for appellant. J. Lee Potts, for appellee.
Case Date:July 02, 1890
Court:Supreme Court of Michigan

Page 1110

45 N.W. 1110 (Mich. 1890)

81 Mich. 616




Supreme Court of Michigan

July 2, 1890

Error to circuit court, Gratiot county; HENRY HART, Judge.

[81 Mich. 617] T. W. Whitney, for appellant.

J. Lee Potts, for appellee.


We are satisfied that the judgment in this case cannot be sustained upon

Page 1111

reason or authority. The plaintiff, while traveling southward with a team of horses hitched to a lumber wagon on which he was riding along a public highway in the town of North Star, Gratiot county, attempted to cross over the railroad track of the defendant company, and was struck by the engine of a passing train, and injured. He also claims damages for killing one of his horses, and damage to his wagon and harness. He brought his action in the Gratiot circuit court, and recovered a verdict and judgment for $1,500. Defendant brings error.

The claim of plaintiff on the trial below was that his injuries resulted from the neglect of the engineer to ring the bell or blow the whistle, and that he was exercising due care in making the crossing. There was some considerable evidence, pro and con, as to whether the whistle was blown or the bell rung as required by the statute, which we need not discuss. It appears that the railroad track, for some distance before crossing the highway, runs through an orchard; and the trees, coming near the surface of the ground, partially obscure the view, with other trees and bushes [81 Mich. 618] there, of persons going southward, of any train going to the south-east. The crossing is but a short distance from North Star station, and the track crosses the highway obliquely. The highway extends from north to south, and the railway running in a north-westerly and south-easterly direction. The plaintiff was well acquainted with the crossing, and had lived within three and one-half miles of it for six years, traveling over it many times. On the morning of June 24, 1887, he was driving his team, attached to a lumber wagon, going south along this highway. The wagon had no box on, and had in along reach. Plaintiff was going for lumber. He was sitting on the hounds between the hind wheels, driving, with both feet upon the same side of the hounds, and partially facing the horses, and with his back to the north-west. The train was the morning passenger, and coming from the north-west; some of the testimony showing it a little behind time, and going at rapid speed. It was due at North Star station, a mile south from the crossing, at 8 o'clock A. M. The plaintiff knew the time the train was due at North Star station, and knew it was about train time when he was approaching the crossing. He describes the condition of this crossing as it existed at that time, and the manner in which the trains upon the railroad track are obscured from the view of...

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