Chicago & N.W.R. Co. v. Smith

• Decision Date: 05 October 1881
• Citation: 9 N.W. 830,46 Mich. 504
• Parties: CHICAGO & N.W. RY. CO. v. SMITH.
• Court: Michigan Supreme Court

9 N.W. 830

46 Mich. 504

CHICAGO & N.W. RY. CO. v. SMITH.

Supreme Court of Michigan

October 5, 1881

An eight-year-old boy trespassing upon the premises of a railroad company got on the step of the engine and was ordered off by the fireman, and as he jumped off he fell. The locomotive was started at that moment and the tender passed over his arm. He was a boy of more than average intelligence and had been warned against going on the premises or riding on the engine. Held, that the railway could not be held liable for the injury without showing that the engineer or other servants of the company in charge of the locomotive knew that the child was in the way, or that they had been reckless or negligent in the management of the engine, or could have anticipated the injury.

Error to Marquette.

Dan H. Ball, for plaintiffs in error.

G.W. Hayden, for defendant in error.

MARSTON, C.J.

While the witnesses do not fully agree upon the facts, yet in the view which we are compelled to take, the dispute becomes immaterial. The court charged the jury in substance and effect, that if they found the facts to be as testified to by the defendant's witnesses, the plaintiff could not recover, and the instruction given, as to the right of the company to a clear track, and the boy being a trespasser that it could only be held liable in case there was gross and wanton negligence on its part, such negligence as would indicate an indifference to the safety of the boy, was undoubtedly correct. The important question in the case as submitted is whether the court should not have charged the jury, as requested, that under the evidence the plaintiff could not recover. Taking the testimony of the boy, and accepting it as true in every respect, and there is no evidence in the case more favorable to the plaintiff, and it fails to show, or tend to show, that the engineer knew or had reason to know that he was there at all, and consequently there could have been no negligence on his part in starting the engine.

Neither does the boy's evidence tend to show that the fireman knew or had reason to suppose, that he had fallen down, or was in any danger of being run over or injured--and certainly there is nothing in the whole case tending to show that any of the defendant's servants were wanton or wilful in their conduct, or indicating a degree of indifference on their part as to the safety of the boy. Even should it be conceded that...