Cowan v. Muskegon R. Co.

• Decision Date: 27 February 1891
• Court: Michigan Supreme Court
• Parties: COWAN v. MUSKEGON RY. Co.

48 N.W. 166

84 Mich. 583

COWAN v. MUSKEGON RY. Co.

Supreme Court of Michigan

February 27, 1891

Error to circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

Smith, Nims, Hoyt & Erwin, for appellant.

De Long & O'Hara, for appellee.

MCGRATH J.

Defendant company owns and operates a street railway at Muskegon. On the 20th day of October, 1889, it was engaged in extending and laying its tracks, and had excavated and dug up the ground on Lake street, and had thrown up quantities of dirt and rubbish into the street adjoining its tracks. Plaintiff's buggy was being driven upon the street in the night-time, and, coming upon one of these heaps of dirt, was capsized and injured, and plaintiff brought suit in justice court, recovered in that court, and defendant appealed to the circuit court, where plaintiff again recovered. Plaintiff's declaration is in writing, and is as follows: "Muskegon county-ss: Thomas Cowan, plaintiff herein, by De Long & O'Hara, his attorneys, complains of the Muskegon Railway Company, a corporation duly organized and existing under the laws of the state of Michigan defendant, duly summoned in the plea of trespass on the case for that, whereas, the defendant heretofore, to-wit, on the 20th day of October, 1889, was the owner and in possession of a line of the street-railway track in certain streets of the city of Muskegon, to-wit, on Lake street, in said city; and being the owner and in possession thereof, said defendant, on the day and year last aforesaid, for the purpose of laying track and making other improvements in and upon said line of railway and track, graded and excavated and dug up the ground on said Lake street, and carelessly and negligently piled and threw up a large amount of dirt, rubbish, and ground, so that the same became and was dangerous for the driving of teams and vehicles. Plaintiff further avers that on the day and year last aforesaid he was the owner of a certain top carriage, which he on said day let or hired to one Richard Call. That he, the said Richard Call, took said carriage, to which was hitched a certain horse of the said plaintiff; and he, the said Call, drove said horse and rode in said carriage past and upon said Lake street, which said Lake street was a public street and a public highway in said city; and while the said Call was driving said horse and riding in said carriage, and driving the same in a careful and prudent manner, and without any knowledge that the...