Jensen v. Michigan Cent. R. Co.

• Citation: 102 Mich. 176,60 N.W. 57
• Court: Supreme Court of Michigan
• Decision Date: 25 September 1894
• Parties: JENSEN v. MICHIGAN CENT. R. CO.

60 N.W. 57

102 Mich. 176

JENSEN v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

September 25, 1894

Error to circuit court, Washtenaw county; E. D. Kinne, Judge.

Action by Mathew Jensen against the Michigan Central Railroad Company for personal injuries. Judgment for defendant. Plaintiff brings error. Affirmed.

Thompson, Harriman & Thompson, for appellant.

John F Lawrence, for appellee.

GRANT J.

Plaintiff was injured while crossing the defendant's road over a public highway in the country, near the village of Chelsea. The railroad at this point runs east and west. Parallel with and adjoining to it upon the north is a public highway, three rods wide. The accident happened in the highway running north and south at right angles with the highway above mentioned. The house of one Downer was situated to the north of the highway and east of an extension of the east line of the north and south highway. The railroad had two tracks. The accident happened at 9 o'clock in the morning. Plaintiff had drawn a load of poultry to Downer's house with a team of two large horses and a lumber wagon After unloading the poultry, Downer requested plaintiff to take a calf for him to the village. Plaintiff inquired if he should have to cross the railroad track, to which Downer replied that he would. The calf was in the field, and, while Downer went to get some bran for the purpose of catching the calf, plaintiff stood upon the ground by the side of his wagon, and testified that he then looked and listened for a train. His testimony upon this point is as follows: "The house was north of me, so I could not see the railroad. I could see east. I could not see the railroad track because of an orchard, and big maple tree, and picket fence and ivy on it. I stood by my wagon and looked, but I could not see anything on account of the orchard and maple trees and ivy." Downer came with a pail of bran, and both got into the wagon in which there was no seat. They stood up. Plaintiff drove and Downer stood with one hand upon his shoulder. They were talking from that time until the accident occurred. Neither saw the train until the horses were close to the track. Downer, in the excitement, told plaintiff that the train was coming, and jumped from the rear of the wagon without injury. Plaintiff hurried his horses, and got them across the track but the rear of the wagon was struck by the engine. The distance from the point at which they started to the railroad track was 128 1/2 feet, and the team walked the entire distance until the train was seen approaching. Plaintiff did not stop during that distance, but testified that he looked in both directions, and that he knew a train might be coming. The speed of the train was about 50 miles an hour. It is conceded by plaintiff's counsel that when plaintiff entered the east and west highway from the north, he could have seen the track at a point about 80 rods east, and from that point for nearly a mile further east, from which direction the train was approaching. The distance from the north line of the railroad track to the north line of the right of way is 18 feet. There is a slight elevation extending back from the railroad, and from the track to the top of this elevation is 33 feet. There is no cut in the highway, but its bed is even with the surface of the ground. To the east of the highway, and between it and the railroad right of way, were some bushes, which, it is claimed, obstructed the view. The train was 500 feet long. It was demonstrated by actual experiment that from the north side of the east and west highway, where plaintiff entered it, for a distance of 23 feet, the track was in plain sight for about a mile beyond these bushes, the eastern end of which was about halfway between the crossing and the whistle post.

1. The negligence alleged was the usual one in such cases,-failure to blow the whistle and ring the bell. The jury, in reply to special questions, found that the bell was rung, but that the whistle was not blown. The negligence of the defendant was therefore, established. The jury found that the plaintiff was not entitled to recover, because of his own contributory negligence. The court instructed the jury that a failure either to blow the whistle or ring the bell was negligence. The charge of the court was very clear and explicit. Errors are alleged upon the admission of evidence and the charge of the court. Downer was a witness for the plaintiff. When upon the stand he was asked in regard to certain statements claimed to have been made by him contradictory of his testimony upon the direct examination. These statements were either denied by him, or he testified that he did not remember them. The time and place of these conversations were fixed. The...