Apsey v. Detroit, L. & N.R. Co.
| Decision Date | 05 December 1890 |
| Parties | APSEY v. DETROIT, L. & N. R. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Ingham county.
R. A. Montgomery and Charles B Lothrop, for appellant.
Frank L. Dodge and C. P. Black, for appellees.
At Meridian station, in Ingham county, where the railroad runs nearly east and west, there is a highway crossing the track running north and south. About 10 o'clock in the forenoon of July 7, 1888, an east-bound train that did not stop at this station passed over the highway. A man named James Apsey was riding in a top buggy drawn by a single horse along the highway, coming from the south of the track towards the north. With him was his son, Willie, aged 11 years. They collided with the passing train, killing them both instantly. For the death of the son, the plaintiff, who is his mother brings this action as administratrix of his estate. From a point lying at the east of this highway crossing to a considerable distance west, the ground had been excavated for the road-bed of defendant's track. Some of the surplus earth was piled upon the company's right of way west of the highway crossing. In order to bring the highway to a grade with that of the railroad, the road-bed of the highway had been excavated a short distance south of the railroad. This excavation was from 2 to 4 feet in depth, and extended back from the railroad track a short distance. On the south side of the railroad track a ditch was excavated for the purpose of carrying off the water, and over this ditch the company had constructed a bridge of plank, all of which were 14 feet in length, running crosswise of the highway. On the east side of the highway, as it approached the railroad, there were obstructions which prevented a person passing along the highway at that season of the year from obtaining a view of defendant's track and cars approaching thereon for a distance of some 12 or 15 rods south of the crossing to a point which was from 25 to 45 feet south of the track. The testimony is conflicting as to the exact distance from the track at which a person riding in a buggy could see a train approaching from the east, but there was not much if any conflict that a train might be seen approaching from that direction at or about the intersection of the defendant's right of way with the highway, which at that place was 45 feet south of the track. The view was obscured by buildings, an orchard, and the embankment before referred to. The uncontradicted testimony of plaintiff shows that on the east side of the road, in or near the orchard aforesaid, stood the dwelling-house of one Rorback, and that Mr. Apsey, the driver of the horse, on approaching the railroad track on that occasion, in passing north, followed the usually traveled and beaten track of the road until nearly opposite the Rorback house, and at that point the indications manifested by the track of his buggy showed that he turned to the right, and proceeded a short distance, and then curved into the road again, as if he had at first intended to turn around at that point; and, from the indications, he had proceeded on towards the railroad track until he came to a point near the bridge, before referred to, across the ditch, when he turned to the right, the wheel of the right-hand side of the buggy passing on the edge of the embankment, and the wheel upon the left-hand side leaving the bridge over the ditch at the west end, at which point the horse and wagon came in collision with the locomotive engine, the horse striking against the cylinder, and the plaintiff's husband and his son being thrown upon the driving-rod of the engine, causing, as before said, almost instant death to the father, and instant death to the son.
It is claimed on the part of plaintiff in the declaration in the case that the defendant was negligent, and that James Apsey, the driver of the horse, and his son, Willie Ray Apsey, were in the exercise of due care and caution, and that the injury resulted without fault or negligence on their part. The negligence of the defendant alleged in the declaration consisted in not giving the statutory signals required upon approaching a highway crossing, the obstruction of the view by the embankment, and in running their cars at too great a rate of speed past a point where the view of the track and train was thus obstructed. It appears that the deceased, James Apsey, resided at or near Meridian station, and was familiar with the highway crossing at that point; and defendant claims that the testimony in the case is conclusive that James Apsey was guilty of contributory negligence, and that therefore the plaintiff was not, under the declaration, entitled to recover. Upon this point, four witnesses gave testimony in behalf of the plaintiff, and one in behalf of the defendant.
The first witness called who saw James Apsey and his son at or about the time of the accident was Archie Glosser. He was standing by the fence in the grain-field 15 or 20 rods west of the crossing. He saw Apsey and his son as they were driving towards the track. He says that they were looking up the track-west-as if they were looking for the train; that he watched them until they got out of his sight in a kind of a bank that was there, and that they dropped down into what is called a "cut," and that was the last he saw of them. He saw the train after they had disappeared from his sight, and heard the danger whistle sounded. They commenced sounding the alarm whistle at about the time they were at the switch, and sounded all the way down to the crossing. He did not remember at what gait Apsey was driving, and could not tell whether it was fast or slow. He says he could see Apsey until he got within 15 or 20 feet of the...
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