Bond v. Lake Shore & M.S.R. Co.
| Decision Date | 18 July 1898 |
| Citation | 117 Mich. 652,76 N.W. 102 |
| Parties | BOND v. LAKE SHORE & M. S. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Washtenaw county; Edward D. Kinne, Judge.
Action by Hattie M. Bond against the Lake Shore & Michigan Southern Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed.
Plaintiff claims that while she was riding south from Ann Arbor, in a public highway, her carriage was struck by the engine of a freight train going west on the defendant's road. The accident happened September 22, 1894, and she commenced this action August 19, 1896. She recovered verdict and judgment. She was 66 years old, was alone, and driving with one horse and a covered buggy. The curtains were closed. She claims that she was ignorant of the approach of the train until she heard the alarm whistle and saw the approaching train; that she was then so near the track that she did not dare to stop and therefore whipped her horse in an attempt to get across. Her buggy was overturned in a ditch from 20 to 40 feet from the track. The Ann Arbor Railroad crosses the defendant's road, 2,523 1/2 feet east of the highway, at a place called "Pittsfield Junction." The highway runs nearly north and south. The railroad runs southwesterly. A small one-story house and barn, owned by a Mr. Ukle, were situated near the corner, upon the land between the railroad right of way and the highway. The house was to the south of the barn and the distance from the house to the track was about 200 feet.
C. E. Weaver (Geo. C. Greene and O. G Getzen-Danner, of counsel), for appellant.
Lehman Bros. & Stivers, for appellee.
GRANT C.J. (after stating the facts).
1. Plaintiff was guilty of contributory negligence, under her own testimony. She had lived for 15 years a short distance south of this crossing, and crossed it many times, and was entirely familiar with the situation. She was partially deaf in her left ear, which was towards the east, the direction from which the train was approaching. In a written statement made a few weeks after the accident, she said that she was entirely deaf in that ear. When plaintiff reached a point near Mr. Ukle's house, she heard a train at the east which she supposed was on the Ann Arbor road. She knew that a freight train on the defendant's road was due some time before she reached the crossing. She thought it had gone, but in fact it was behind time. She testified that she slowed the speed of her horse, but did not stop to listen; that she looked through an opening three or four inches wide between the top of the curtain and the covering above; that she leaned forward and looked, and that she listened. She thought there must have been some small trees or something growing on defendant's right of way beside the fence, because she could not see the track. Plaintiff had no means of determining whether the train she heard was on the defendant's road or the Ann Arbor road. Aside from the fact that a railroad crossing is of itself warning of danger, she was further warned by the noise of a train which might be, and in fact was, on the defendant's road. Travelers upon a highway are charged with notice that trains are liable to pass at any time, and the law requires them to exercise the same degree of care at all times. If it were a fact that trees or bushes obstructed her view, it was her clear duty to stop and listen. It is evident, from her own statement, that she could have heard the train had she done so. On her redirect examination, she testified: "I think I heard the train at the junction start out." In her statement above referred to she said: "When I first heard the train I thought it was on the Toledo & Ann Arbor road, and the next thing I heard was the fearful whistle of the engine." She also said in that statement: "I did not stop to listen or look to see where the train was." She admits that she made the statement, that it was read to her, and that she signed it. There is no evidence of any unfairness in procuring it, or that she was not mentally competent to make and understand it. The only explanation she gives is: "I was very sick, and did not place my mind on it." She denies no part of it, except to say: The conclusion is irresistible that, had she stopped and listened, the accident would have been avoided.
It is also conclusively established by the evidence that there was no obstruction to her vision from the time she passed Mr Ukle's house until she reached the track, and that during that entire distance she could have seen the train from the time it started from Pittsfield Junction. Mr. Walker, who lived in the first house south of the track, was working in a field to the north. He came out into the road with his team about 30 rods north of the track, and saw Mrs. Bond coming 10 or 15 rods behind him. He heard the customary crossing signals, and saw the train. Said he could not help seeing it after passing to the south of Mr. Ukle's house. "From there on to the railroad there was nothing to prevent my seeing it." He testified that plaintiff was sitting on the right side of the...
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