the Bay City &Amp; East Saginaw Railroad Company v. David M. Austin

• Decision Date: 06 October 1870
• Citation: 21 Mich. 390
• Court: Michigan Supreme Court
• Parties: The Bay City & East Saginaw Railroad Company v. David M. Austin

21 Mich. 390

The Bay City & East Saginaw Railroad Company v. David M. Austin

Supreme Court of Michigan

October 6, 1870

Heard July 11, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Saginaw circuit.

This was an action on the case brought by David M. Austin in the circuit court for the county of Saginaw, against the Bay City & East Saginaw railroad company. The plaintiff set forth in his declaration the corporate character of the defendant; the location of its road, its duty under the statute to erect and maintain fences along the sides of its road, and the neglect of this duty, in consequence of which a horse of the plaintiff's, straying upon the road, was killed. The defendant pleaded the general issue. On the trial it appeared that the road where the injury occurred was in the possession of, and operated by a corporation created under the laws of the state of Michigan, known as the Flint & Pere Marquette railway company, under a contract with the defendant. Under the charge of the court the jury found a verdict for the plaintiff for $ 212.04; on which, on plaintiff's motion, a judgment was entered in double the amount; which judgment comes into this court by writ of error. The questions for review are sufficiently stated in the

Assignment of Errors. 1st. The court erred in refusing to charge the jury as requested, "that if the jury find that the track of the defendant was at the time of the accident operated by the Flint & Pere Marquette railway company, and that the horse was killed by the engine of the Flint & Pere Marquette railway company, which was the only company at that time operating trains on the defendant's track, then the defendant is not liable in this action."

2d. The court erred in charging the jury, in lieu of the charge requested as stated in the foregoing assignment, as follows: "I decline to give the jury this instruction, for the reason that if the jury find that the Flint & Pere Marquette railroad company were operating it, although it may be exclusively their occupancy under the contract that has been read, it was operated within the sense of this statute by the Flint & Pere Marquette railway company as the agent of the defendant."

3d. The court erred in refusing to charge the jury as requested, that "the bars having been put in for the accommodation of the farm crossing, it was the duty of the person in charge of the farm to keep the bars up, and if they were out of repair, it was his duty to call the attention of the defendant, or its servants or officers, to that fact, and if he failed to keep up such bars or to give such notice, he was guilty of negligence which will defeat a recovery for damages resulting therefrom."

4th. The court erred in charging the jury in response to the request mentioned in the previous assignment, as follows: "That request I cannot comply with. It seems to devolve upon the person in charge of the farm to exercise a supervision which is a part of the duty of keeping a fence in repair. It supposes that the person in charge of the farm, if he found the bars down, must put them up; that duty devolves on the defendant. But if the plaintiff should let the bars down himself, it would be his duty to put them up as well as they were before he let them down, and if the defect in the fence or in the bars arose from ill usage by the plaintiff or by McKay (who had charge of plaintiff's horse), and the defect did not come to the knowledge of the defendant, the plaintiff cannot recover. If a defect arose after the bars were originally made, otherwise than by ill usage from the plaintiff or from McKay, it would not be the duty of McKay or the person in charge of the farm to give any notice about it; the defendant was bound to take notice if the fence got out of repair on account of ordinary wear or the ordinary effect of the elements; it was the duty of the defendant to take notice of it."

5th. The court erred in refusing to charge the jury as requested, that "if the person in charge of the farm was not satisfied with the sufficiency of the fence, it was his duty to notify the defendant thereof; and if the parties could not agree, to have the question settled by the fence-viewers, as provided by law in case of partition fences."

6th. The court erred in refusing to charge the jury as requested, that "if the jury find that the defendant has never run trains on its road, has never had engine nor cars thereon, then the plaintiff cannot recover in this action."

7th. The court erred in refusing to charge the jury as requested, that "the duty to erect and maintain fences along railroad tracks is imposed upon the person or corporation occupying or using the track, and if the defendant had parted with the use and occupancy of its track to other persons or to any other corporation so as to give such other person or corporation an exclusive right to use and control the track for a definite time, then the duty to erect and maintain fences devolves upon the party occupying the track, and no recovery can be had against the defendant."

8th. The court erred in charging the jury relative to the request mentioned in the seventh assignment as follows: "I can give you all that instruction except the last proposition, 'that no recovery can be had against the defendant.' I decline that part of it. So long as the defendant remains the owner and the road is being operated by persons who stand in the relation of agent to the defendant, it is liable for all damages arising from neglect to erect and maintain fences."

9th. The court erred in refusing to charge the jury as requested, that "the duty to erect and maintain fences does not devolve on two corporations at the same time, when only one is in the exclusive charge and control of the track and roadway, and the plaintiff cannot recover except against the corporation which is in possession and using the track."

10th. The court erred in giving judgment for double the damages assessed by the jury, there being then no law in force authorizing such judgment.

Judgment of the court reversed, in part and affirmed in part and the plaintiffs in error recovered their costs in this court.

W. L. Webber, for plaintiff in error:

I. The first, second, sixth, seventh, eighth and ninth assignments relate substantially to the same question, and will be considered together.

The defendant below was organized as a corporation and commenced the construction of its road. Before any iron was laid the possession of the line passed to the Flint & Pere Marquette railway company, to the entire exclusion of the defendant below. The F. & P. M. railway company constructed the road, and was the only company which had run its cars on the track. The employes were all in employ of the last named company. The F. & P. M. Co. was not the agent of the B. C. & E. S. R. R. Co. in any sense. Unless the term "agent" is to be changed in its definition so as to be used in an entirely new sense, it is a misnomer to speak of the F. & P. M. R'y Co. as the agent of the B. C. & E. S. R. R. Co. The original section 43 of the general railroad act provides that "every railroad corporation formed under this act shall erect and maintain fences, * * * * and until such fences * * shall be duly made, the corporation and its agents shall be liable," etc. As amended in 1867, p. 221, it shows that it was the intention to confine the liability to the single corporation or person, who was the one on whom the liability rested to erect and maintain the fence, and that it was not contemplated to hold more than one party liable at one time.

The horse, in the case at bar, was killed by the engine of the F. & P. M. R'y Co., run by its agents, and not by the agents, engines, or cars of the defendant below.

II. As to the third and fourth assignments: The farm where these bars were was in the possession of McKay, with whom Austin was pasturing his horse. The railroad company had no charge of the farm, and had no use for the bars. No one had a right to pass through the bars except by consent of the person in charge of the farm.

Now what is the object of the statute requiring fences along railroad tracks? For the protection of the lives of passengers, clearly. Every one knows that very many accidents arise from trains being thrown from the track by running over animals on the track, and in this very case the engine was thrown from the track, but fortunately no one was injured. The company is to maintain the fence, but that does not require them to have a man stationed at every ten rods to see that no one tears it down. They are to maintain it as against the ordinary action of the elements, to use diligence to keep it in repair, but they are not insurers against accidents to it, nor against the vicious acts of trespassers who may intentionally destroy it, for the purpose of injuring the property of the farmer or the railroad company. To carry out the object of the statute, it would seem to be proper to require the person in charge of the farm, as well as the railroad company, to exercise diligence in keeping the bars up. Yet, under the charge to the jury, if the bars were thrown down by a trespasser, and the farmer saw them down and knew his horses were at pasture there, and liable to escape from the field to the track, yet he is under no obligation to put them up. We claim that if the person in charge found the bars down, it was his duty to put them up. If he found them out of repair, it was his duty to put them in repair at once. Where consequences so great may result from the omission to do so, to hold any other rule would be dangerous. Even if he is to call on the company for compensation for...