Underhill v. Chicago & G.T. Ry. Co.

• Citation: 81 Mich. 43,45 N.W. 508
• Parties: UNDERHILL v. CHICAGO & G. T. RY. CO.
• Decision Date: 16 May 1890
• Court: Supreme Court of Michigan

45 N.W. 508

81 Mich. 43

UNDERHILL v. CHICAGO & G. T. RY. CO.

Supreme Court of Michigan

May 16, 1890

Appeal from circuit court, Eaton county; FRANK A. HOOKER, Judge.

Huggett & Smith, for appellant.

Geer & Williams and Philip T. Van Zile, for appellee.

CHAMPLIN C.J.

On the 4th of July, 1887, as Mrs. Sophronia Underhill was driving a horse and carriage across defendant's road, she was struck by the engine of a passenger train, and instantly killed. This action is brought to recover damages for the killing, and is based upon the negligence of defendant in running its train at a high rate of speed across the public highway without having given the signals required by statute. The plaintiff's intestate was driving south on the public highway at about 6 o'clock P. M., in a top buggy. It was raining slightly at the time. The line of the railroad crossed the highway in a north-easterly direction, the angle between the two roads being 60 degrees. The train was going east. The plaintiff, to prove the defendant's negligence, introduced a number of witnesses who testified as to the speed of the train as being from 40 to 100 miles an hour; and also, by the same witnesses, that they did not hear the whistle sounded or bell rung before the train reached the crossing. He also introduced testimony showing certain obstructions to the view of a person approaching the railroad from the north on the highway. It was shown that the regular mail train had passed the station about a half hour before, and that this passenger train was following in the same direction. A freight train had just taken the siding which left the main track 72 feet west of the highway crossing. The plaintiff introduced no testimony showing what care and caution the intestate exercised in approaching the crossing, nor was it shown whether she stopped her horse and looked or listened.

Upon the case as the plaintiff left it at the close of his testimony, the jury might have inferred that she approached the track with due care, and stopped and looked and listened at the proper distance from the track, and, hearing and seeing no train, and hearing no signal of an approaching train, acted as a prudent person would in attempting to cross the track. Upon the testimony so placed before the jury, upon the plaintiff's showing, the case should have been submitted to the jury. But the facts were not left in that state. The defendant showed by the testimony...