Carver v. Detroit & Saline Plank Road Co.
| Decision Date | 28 October 1885 |
| Citation | 25 N.W. 183,69 Mich. 616 |
| Parties | CARVER v. DETROIT & S. PLANK-ROAD CO. |
| Court | Michigan Supreme Court |
Error to Wayne.
Parker & Burton, for plaintiff.
C.A Kent, for defendant.
The defendant in this case is a corporation organized under a charter and the general plank-road act of 1848. See Sess.Laws 1848, p. 110; How.St. 914. Its road is constructed on the highway from Detroit to Saline. This highway has been in existence and used more than 40 years, and was so used many years before the defendant's plank-road was constructed. A part of defendant's road runs along and near the bank of the River Rouge. The traveled part of the road is here about 25 feet wide, lying between the Michigan Central Railroad track and the south bank of the river, which is from 20 to 25 feet high, with a steep descent to the waters. From the center of the road to the edge of the river is about 70 or 75 feet. There is no fence or other barrier along the river bank.
The husband of the plaintiff in this case was drowned at this point on the evening of the seventh of September, 1883. The evidence in the case tends to show that he was returning to his home from a trip to Detroit with a horse and skeleton buggy, and on arriving at the place above mentioned his horse became frightened and unmanageable, and in his wild and excited movements went over the bank into the river, carrying the wagon and driver with him. Mr. Carver was found dead in the river next morning, and the horse and wagon were taken out at the bank opposite uninjured. No person saw the occurrence or its incidents until morning; and the manner of Carver's death is shown only by the proof of his condition in the evening before he reached the fatal spot and the indications which were observed at the time the body was taken from the river, in the road, and upon the line the horse took down the bank to the water.
The plaintiff was duly appointed administratrix of the estate of the deceased, and as such brings this suit for the loss she has sustained in the death of her husband, which, as she alleges, was caused through the negligence and carelessness of the defendant in not erecting and continuing in good repair a suitable fence, or other barrier, between the river bank and traveled portion of the highway to prevent accidents and injuries of the kind complained of.
The evidence, we think, tends strongly to show that the place where the accident occurred was a dangerous one, and required proper attention by the parties whose duty it was to keep the highway in proper repair at that point; and it must be conceded, I apprehend, that the obligation to make safe this public way, at the time of the accident, rested upon this defendant. It assumed this duty when it accepted its franchise and constructed its road. Whether or not the company was negligent in the discharge of that duty at the place where the injury took place, and that in consequence of such neglect the drowning of the plaintiff's husband occurred, without fault upon his part, were the questions to be determined in the case. The circuit judge held, under the testimony given, the plaintiff could not recover, and directed a verdict for the defendant. We are unable to agree with the learned circuit judge in his ruling, and are all of opinion the case should have been given to the jury. It is true, the evidence was largely circumstantial; but it appears to have been the best attainable, and the inferences and conclusions to be drawn therefrom were peculiarly within the province of the jury.
There is no question but that the accident occurred at the time and place alleged. The testimony showed the situation of the plank-road, with reference to the river, its bank, and the declivity where the horse went down. The tendency of all the testimony was to the effect that, in consequence of the near proximity of the road to the river, the place was a dangerous one, and this view is greatly strengthened by the fact that several injuries had previously occurred there.
It is not necessary in this case to consider the extent of the duty of the defendant, either at common law or under its charter, in this class of cases. It is enough that under the general statutes of this state passed in 1877, it was made the duty of the defendant to erect the barrier against the danger which overtook the plaintiff's husband at this place, therein provided for. Laws 1877, pp. 135, 136, �� 5, 7. [1]
It is claimed, however, that this statute does...
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