60 N.W. 57 (Mich. 1894), Jensen v. Michigan Cent. R. Co.

Citation:60 N.W. 57, 102 Mich. 176
Opinion Judge:GRANT, J.
Party Name:JENSEN v. MICHIGAN CENT. R. CO.
Attorney:[102 Mich. 177] Thompson, Harriman & Thompson, for appellant. John F. Lawrence, for appellee.
Judge Panel:McGRATH, C.J., and LONG and HOOKER, JJ., concurred with GRANT, J. MONTGOMERY, J., concurred in the result.
Case Date:September 25, 1894
Court:Supreme Court of Michigan
 
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Page 57

60 N.W. 57 (Mich. 1894)

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.

[102 Mich. 177] 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 [102 Mich. 178] 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...

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