Chicago & N.E.R. Co. v. Miller

• Citation: 46 Mich. 532,9 N.W. 841
• Parties: CHICAGO & NORTHEASTERN RY. CO. v. MILLER.
• Decision Date: 05 October 1881
• Court: Michigan Supreme Court

9 N.W. 841

46 Mich. 532

CHICAGO & NORTHEASTERN RY. CO. v. MILLER.

Supreme Court of Michigan

October 5, 1881

An old man, who was somewhat deaf, while driving a span of colts towards a railway track down a narrow road from which the track was concealed on one side by a high embankment, stopped to listen, but hearing nothing drove on and when close by the track a train appeared within a few rods. Fearing that he could not control his horses where they were, he whipped them up, and tried to cross the track, and the rear of the buggy was struck by the locomotive. Held, that in an action for the resulting injury the question whether plaintiff was guilty of contributory negligence was for the jury.

In declaration for a railway injury, an averment that defendant negligently and carelessly drove a certain locomotive upon the railroad up to, upon and across a certain public highway at the crossing of the same and the said railroad, without giving the necessary statutory signals, viz.: ringing a bell or sounding a whistle, was a sufficiently specific averment of defendant's negligence when taken in connection with the averment of consequential injury, and it entitled plaintiff to support it by evidence, under defendant's plea to the general issue. The neglect of a railroad company to ring a bell as required by statute when approaching a crossing will make it liable for any injury resulting from such neglect.

Error to Genesee.

P.B. Gaskill, for plaintiff in error.

Long & Gold, for defendant in error.

MARSTON C.J.

Two principal questions have been presented on the argument in this case. The declaration it is said is defective in not averring specifically the negligence of the defendant which caused the injury. The declaration that at a certain time and place the defendant negligently and carelessly drove a certain locomotive upon and along the railroad up to, upon and across a certain public highway, at the crossing of the same and the said railroad, without giving the necessary statutory signals, viz., ringing a bell or sounding a whistle. Here the specific act of negligence is pointed out, and evidence was introduced tending to sustain the averment. This averment with allegation of consequental injury in our opinion was sufficient, and entitled the plaintiff to introduce evidence, under the plea of the defendant, in support thereof. It was the duty of the company to at least ring a bell on approaching the highway where the injury was done, and a failure so to do would render it liable in case any person was injured in consequence of such neglect.

It is next claimed that the facts as proven would not entitle the plaintiff to recover, because under his own showing he was guilty of contributory negligence.

It is conceded that the record shows but few disputed facts. If the testimony of the plaintiff, taken as a whole, fairly tended to make out a case in all its parts, then the court was right in submitting the same to the jury under proper instructions even although the evidence on the part of the defendant may have been strong against a right to recover. The plaintiff was a farmer, aged 67, and on the morning of June 11th started from his home, accompanied by his daughter, for Flint. He drove a spirited team of well-broken three-year old colts, that had never been near or seen the cars. The highway as it approached the track had been cut down, leaving quite high embankments which prevented a view of the railroad track in the direction from which the locomotive approached. The plaintiff when about 16 rods from the track stopped his team listened and watched, and as he approached the track, the highway was narrow on account of the grade, a wagon loaded with gravel crossed the track, and the driver thereon spoke to the plaintiff, but owing in part to the latter being a little deaf, he did not hear what was said but inferred from the motion made that a train was coming. The plaintiff could not then see the train; he spoke to his horses, and as they reached the track, or when within two rods of it, he saw the locomotive approaching about 12 rods distant. He said, "At the first glance I made up my mind I would get across that track and I swung my whip, and they (the hosses) both jumped; and while crossing the locomotive struck the hind wheels of his wagon causing the injury. The banks on the north side of the road were some 12 or 15 feet high, and the following testimony will perhaps show as clearly as any other, the plaintiff's view of the situation at the time and why he took the course which he did.

Question. You may state to the jury why it was when you first saw the train you didn't hold your horses and let the train pass. Answer. It was under the impulse of the moment the whole thing was done; had I undertaken to have held them one chance out of a hundred they might have stood; they were a pair of three-year-old colts at the top of their mettle. Q. State why you didn't stop your horses? A. I was partly sure I would get under the cars if...