Bouwmeester v. Grand Rapids & I.R. Co.

• Decision Date: 06 October 1887
• Citation: 34 N.W. 414,67 Mich. 87
• Parties: BOUWMEESTER, (or BAUMEISTER,) Adm'x, etc., v. GRAND RAPIDS & I.R. CO.
• Court: Michigan Supreme Court

34 N.W. 414

67 Mich. 87

BOUWMEESTER, (or BAUMEISTER,) Adm'x, etc., v. GRAND RAPIDS & I.R. CO.

Supreme Court of Michigan

October 6, 1887

Error to superior court, Grand Rapids.

Fred A Maynard and Lincoln B. Livingston, for plaintiff.

T.J O'Brien and J.H. Campbell, for defendant.

MORSE J.

This cause was before this court in the October term, 1886, and will be found reported in 30 N.W. 337. The cause, as then presented, rested upon the statement of facts made by the counsel for the plaintiff in his opening to the jury. We then held that such statement, if proven, entitled the plaintiff to a recovery. The cause has since been tried in the superior court for the city of Grand Rapids, and the jury, under the instructions of said court, rendered a verdict in favor of the defendant. The plaintiff brings error. The undisputed facts, as developed upon the trial, are as follows:

Peter Brandel, the deceased, was a native of Holland, and 39 years of age at the time of his death. He was a man of family, and lived about a mile south of the car-shops, where he was employed, said car-shops being located at or near the southern boundary of the city of Grand Rapids. He was a sober, industrious man, and a good workman. His nearest and easiest route to his home was along the track of the defendant, it being considerably out of the way to follow any of the roads leading out of the city in his direction. He had been in the habit of using the railroad track in going to and from his work for a long time. Some other people living near him also used the track for a like purpose. It does not appear that any permission was ever given him or any one else to so use the railroad track, nor that they were expressly forbidden by any one to do so. The train which struck and killed him was admitted to be behind time. It usually passed the car-shops before he left his work. On the afternoon of December 7, 1881, while Brandel was going home as usual upon the track, he was run over and instantly killed. The engineer saw him upon the track about the time the train should have whistled for a crossing, and gave the usual whistle. When he came within 40 rods of deceased, he again whistled sharp and full. Brandel paid no attention to it, and, when the train was within about 300 or 400 feet of him, the engineer sounded the danger whistle until the engine struck the deceased. This whistle was so sharp and strong that it called the attention of several people to it, and one Abel Staal, the only person who witnessed the accident beside the train-hands, testifies that "they whistled so hard that I thought it was funny the man didn't get off the track. *** The whistles were blowing so loud I felt like hollering to the man to get off the track. I put my fingers in my ears so as not to hear the sharp sound." Brandel was a man in the full possession of his senses, but had spells of being absent-minded. He was walking with a book under his arm and a dinner-pail in his hand, and seemed to pay no attention to anything until just as the train struck him, then he turned his head.

He was most certainly, under all the authorities, guilty of contributory negligence in thus walking in such a dangerous place without taking any care or precaution whatever for his safety. The evidence is conclusive that if he had exercised any caution at all, or been at all on the alert for danger he must have heard the whistle in time to have saved himself by stepping off the track. We held when the case was here before, taking the statement of the plaintiff's...