Charlebois v. Gogebic & M.R.R. Co.

• Decision Date: 18 March 1892
• Parties: CHARLEBOIS v. GOGEBIC & M. R. R. CO.
• Court: Michigan Supreme Court

51 N.W. 812

91 Mich. 59

CHARLEBOIS v. GOGEBIC & M. R. R. CO.

Supreme Court of Michigan

March 18, 1892

Error to circuit court, Gogebic county; WILLIAM D. WILLIAMS, Judge.

Action by William H. Charlebois, administrator, against the Gogebic & Montreal River Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Button & Norris, for appellant.

M M. Riley, (Howard Morris, of counsel,) for appellee.

LONG J.

This action is brought by the plaintiff as administrator, to recover damages for the death of his son, a child eight years of age. On the trial of the case the court below directed a verdict in favor of the defendant company. It appeared upon the trial that the plaintiff and his family, consisting of his wife and two children, lived in a house situate upon land owned by the Anvil Mining Company, for whom he was working. In April, 1887, the Milwaukee, Lake Shore & Western Railroad Company built a spur track from Bessemer to the Anvil mine. This road passed by plaintiff's house, and within about 30 feet of it, by means of an embankment about 18 feet in height. Some time in July following the defendant company started its road across the former road, and on the same level, by an embankment of fill of the same height leaving the plaintiff's house to the south and east of these two embankments. To the south and west of these two embankments the natural slope of the ground was towards the embankments. The defendant's road-bed was built to the height of 18 feet a day or two before July 15, 1887. On July 14th a heavy rain-storm took place, and the waters from the higher grounds above and the embankments formed a pond at the junction of these two embankments between 5 and 6 feet in depth, extending back 60 or 70 feet. On the 15th of July about 11 o'clock in the forenoon, the plaintiff's son, Joseph Harry, aged eight years, left his father's house, climbed over the embankment, and in some manner unknown got into the pond and was drowned. The claim upon the part of the plaintiff is that he had been accustomed to go from his house to his place of business at the Anvil mine by a by-path or wagon road, which had been cut off by the building of these embankments by the defendant company. The charge of negligence in the declaration is that, the defendant company having constructed the embankments so as to obstruct or cut off such road, it was its duty to furnish to the public the means of crossing the embankments, and to place proper safeguards at and around said point of intersection with the other road, to prevent the public and any one traveling that way from...