Billings v. Breinig

Citation45 Mich. 65,7 N.W. 722
PartiesBILLINGS v. BREINIG.
Decision Date05 January 1881
CourtSupreme Court of Michigan

45 Mich. 65
7 N.W. 722

BILLINGS
v.
BREINIG.

Supreme Court of Michigan.

Filed January 5, 1881.


Where a ferry-man on shore was killed through the carelessness of a tug in running into a wire rope stretched across the river, and by which the ferry was operated, held, that the wrong was not one of which the federal courts had exclusive jurisdiction, and that an action could be maintained therefor in the state courts under sections 6724, 6725, Comp.Laws. A right to operate a ferry is a franchise, and, subject to the sovereign power to control the same, may be transferred by the grantee thereof. Conduct of managers of a tug in moving the tug directly across a ferry track at night, without previous warning or whistle, held negligence. In action for damages from negligence, exercise of due care by plaintiff need not be shown by direct evidence, but if the occurrence itself and the surrounding circumstances are sufficient to breed such inference, and the jury might draw it in the proper exercise of their functions, it is sufficient. Cause held improperly taken from the jury.

Error to Mason.

[7 N.W. 722]

White & McMahon, for plaintiff in error.

Fitch & Samuels, for defendant in error.


GRAVES, J.

A wire rope being stretched across an expansion of the river Marquette at Ludington for ferrying purposes and connected on shore with a fixed windlass to elevate it for use and drop it in the water to avoid vessels, the defendant in the early evening of October 17, 1878, ran his tug against it. At the same time the decedent was in temporary charge of the ferry and was at the windlass for the purpose of dropping the rope out of the tug's way; he having repaired to the spot therefor in great haste on learning that the vessel was moving towards the rope and was near to it. The rope was still up, but decedent was in the act of lowering it as the tug struck. The violent strain whirled the windlass crank with great suddenness and force and caused it to strike the plaintiff's husband on the head, killing him instantly.

The plaintiff brought this action under the statute of 1848 (sections 6724, 6725, Comp.Laws) as amended in 1873 by act No. 94, to recover such damages as should “be fair and just with reference to the pecuniary injury resulting from such death to those persons-entitled to such damages when recovered.”

The circuit judge took the evidence from the jury and in substance and effect directed a verdict for the defendant. In so proceeding he seems to have considered that whatever view the jury might take of the defendant's conduct the showing was conclusive that the catastrophe was owing in part at least to the want of due care on the part of the decedent.

The plaintiff now questions the ruling on a bill of exceptions. The defendant's counsel not only support the opinion of the circuit judge, but urge independent...

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