Armstrong v. Medbury

• Decision Date: 20 October 1887
• Citation: 67 Mich. 250,34 N.W. 566
• Court: Michigan Supreme Court
• Parties: ARMSTRONG v. MEDBURY.

34 N.W. 566

67 Mich. 250

ARMSTRONG v. MEDBURY.

Supreme Court of Michigan

October 20, 1887

Error to circuit court, Oakland county; STICKNEY, Judge.

Thos J. Davis and Theo. Hollister, for plaintiff.

Chas B. Lothrop, for defendant.

SHERWOOD J.

The defendant in this case is the owner of the Pontiac Gas-Works fronting Wesson street. The buildings at the works consist of a retort, purifying house, and a holder, and all stand facing the street, and 19 feet from the line thereof. They are 42 feet from the graveled or traveled portion of the street. There is no fence between it and the buildings. The other sides of the premises, except where they lie next to the east road, are fenced. The ground is level about the buildings. The center of the street and the railroad track are, however, on a grade about three feet higher. The holder is on the extreme west side of the premises; 8 1/2 feet east of it is the purifying house; and 20 feet east of that is the retort. The street is on the north side of the buildings; and directly south, and a few feet from the retort and purifying house, stands the coke-shed, which is reached by two well- defined, traveled tracks, extending from the street to the shed, passing over the vacant space in front of the buildings, and between the retort and purifying houses. When coke was taken from the shed, the wagons were sometimes backed in between the two buildings, and at others were driven in on one track, and, when the load was obtained, passed out on the other; both tracks being well defined, and well known to those who did business with the gas-works.

On the second day of April, 1885, the plaintiff, who drove a one-horse express wagon, and was entirely familiar with the grounds, went to the shed with his horse and wagon, and got a load of coke. In returning, he passed out on one of the tracks mentioned, into the highway, where his horse became very restless at an approaching train of cars, and finally refused to go further. The two tracks upon which the coke-shed was reached were about 58 feet apart at the highway, and the plaintiff attempted to return, and go out on the other track. In so doing he lost control of his horse, which ran up near the north-west corner of the purifying house, and there went down into the ground at a place made soft and spongy by the escape of steam from a broken pipe in the ground, and before the animal could be extricated it was so injured as to become worthless. The horse was valued at $100. For the value of the animal thus injured the plaintiff brings suit, and alleges, as the ground of his action, that the defendant was negligent in not knowing of this dangerous place, if she did not know, and properly protect persons going upon her premises, and their horses, from injury, by a fence, or by giving them some proper warning of the danger. The cause was tried at the Oakland circuit, before Judge STICKNEY and a jury, and under the rulings and charge of the court the plaintiff had judgment for the value of the horse.

The testimony of both parties showed that the place where the accident occurred was at least 25 feet from any track upon the grounds used for passing in and out by men and teams, and that it was used for other and different purposes, (it was used by the defendant in preparing material for the manufacture of gas,) and that a team had never before been known to go...