Brady v. Toledo, Ann Arbor & N.M.R. Co.

• Decision Date: 02 July 1890
• Citation: 81 Mich. 616,45 N.W. 1110
• Parties: BRADY v. TOLEDO, ANN ARBOR & N.M. R. CO.
• Court: Michigan Supreme Court

45 N.W. 1110

81 Mich. 616

BRADY v. TOLEDO, ANN ARBOR & N.M. R. CO.

Supreme Court of Michigan

July 2, 1890

Error to circuit court, Gratiot county; HENRY HART, Judge.

T. W. Whitney, for appellant.

J Lee Potts, for appellee.

LONG J.

We are satisfied that the judgment in this case cannot be sustained upon reason or authority. The plaintiff, while traveling southward with a team of horses hitched to a lumber wagon on which he was riding along a public highway in the town of North Star Gratiot county, attempted to cross over the railroad track of the defendant company, and was struck by the engine of a passing train, and injured. He also claims damages for killing one of his horses, and damage to his wagon and harness. He brought his action in the Gratiot circuit court and recovered a verdict and judgment for $1,500. Defendant brings error.

The claim of plaintiff on the trial below was that his injuries resulted from the neglect of the engineer to ring the bell or blow the whistle, and that he was exercising due care in making the crossing. There was some considerable evidence pro and con, as to whether the whistle was blown or the bell rung as required by the statute, which we need not discuss. It appears that the railroad track, for some distance before crossing the highway, runs through an orchard; and the trees, coming near the surface of the ground, partially obscure the view, with other trees and bushes there, of persons going southward, of any train going to the south-east. The crossing is but a short distance from North Star station, and the track crosses the highway obliquely. The highway extends from north to south, and the railway running in a north-westerly and south-easterly direction. The plaintiff was well acquainted with the crossing, and had lived within three and one-half miles of it for six years, traveling over it many times. On the morning of June 24, 1887, he was driving his team, attached to a lumber wagon, going south along this highway. The wagon had no box on, and had in along reach. Plaintiff was going for lumber. He was sitting on the hounds between the hind wheels, driving, with both feet upon the same side of the hounds, and partially facing the horses, and with his back to the north-west. The train was the morning passenger, and coming from the north-west; some of the testimony showing it a little behind time, and going at rapid speed. It was due at North Star station, a mile south from the crossing, at 8 o'clock A. M. The plaintiff knew the time the train was due at North Star station, and knew it was about train time when he was approaching the crossing. He describes the condition of this crossing as it existed at that time, and the manner in which the trains upon the railroad track are obscured from the view of persons approaching the crossing from the north, with great particularity. He says the first intervening object is a barn, the next a hen-house, and the next an orchard and poplar trees along the highway; that the trees in the orchard were large, and stood some two rods apart, and at that season of the year the leaves were of full size, the tops of the trees coming together, and came down to within five or six rods of the crossing; that there were brush along the highway to near the railroad; that the right of way of the railroad through the orchard is only 30 feet wide, and a cut about two feet deep below the surface, the dirt being thrown out on either side, forming an embankment from 20 inches to 3 feet in height; and that he could not have seen a train approaching from the north-west, until he was within 20 to 25 feet of the crossing, by reason of these obstructions to his view. The plaintiff also tells his story as to how he drove along the highway, and the care he exercised in approaching, from which it appeared that, for some distance before reaching the crossing, his team at times were permitted to walk, and at other times were trotting along slowly; that they trotted down to within five or six rods of the crossing, and from there walked upon and across it. When arriving at the crossing, the nigh hung back a little, and the plaintiff urged her with the lines to go across; and, just as the team crossed the track, the wagon was struck by the engine, and the injuries complained of resulted. He did not stop his team before reaching the crossing, or before he was struck. When his attention was called to the manner of his approach, and what he did, he stated that he looked and listened. He was asked: "Question. What had you done before that,-before you come up to the railroad track, and urged your horses on? Answer. I looked. Q. Which way did you look? A. I looked down the track first, because I could see down the track better than I could see up? Q. Your horses on a walk? A. Yes, sir. Q. Go on, and state to the jury what the extent was of your looking down the track. A. Well, I looked down the track. I saw the freight-car on the side track, and there and then I turned and looked up the track as far as I could, but I could not see any further than that tree. Q. Then at that time your horses' feet were pretty near up to the track, and you looked up the track? A. Yes, sir. I heard nothing or saw nothing at all. Then I urged the horses to go across the track, and they just got across; and I think I was just in the act of looking, just as the whistle blew, because I saw the steam from the whistle. I slapped the lines on the horses, and the train struck me." The plaintiff further testified that he listened...