Crane v. Michigan Cent. R. Co.
| Decision Date | 24 December 1895 |
| Citation | 65 N.W. 527,107 Mich. 511 |
| Court | Michigan Supreme Court |
| Parties | CRANE v. MICHIGAN CENT. R. CO. |
Error to circuit court, Kalamazoo county; George M. Buck, Judge.
Action by Edgar A. Crane, administrator, against the Michigan Central Railroad Company. There was a judgment for plaintiff and defendant brings error. Affirmed.
Edwards & Stewart (Ashley Pond and Henry Russell of counsel), for appellant.
William G. Howard and Alfred J. Mills, for appellee.
Plaintiff's intestate, who was 12 years of age, and another lad, who was 16 years of age, were killed while on the highway in a top buggy at a railroad crossing. Both highway and railroad way ran in the same general direction for some distance east and west from Comstock station. The crossing is about one mile west from the station. Both railroad and highway ran parallel, in a northwesterly direction, from the station to the crossing in question. The railroad way then curves to the south, crossing the highway, and running on the south side thereof. The boys were driving west, and the engine evidently picked up the buggy from the rear thereof. Both highway and railway are in cuts from the crossing easterly for some 600 feet. Plaintiff's testimony tended to show that the embankment of earth between the highway and the tracks was between 4 and 5 feet above the bed of the highway for some distance east of the crossing; that on the crest of this embankment the railroad company had erected a board fence, which was between 4 and 4 1/2 feet in height; that, since the construction of the railway, earth has been thrown up from the railroad way on top of this embankment; that shrubbery had grown along the line of the fence; that the fence was on the line between the company's right of way and the highway; that a train approaching from the east could not be seen from a buggy on the highway, even by standing upon the buggy seat, until the front feet of the horse were within two feet of the track; that in going westerly, for some distance east of the crossing, both highway and railroad way were on the same down grade; that a train bound east had, within a very few minutes before the collision, and while the boys were within 100 rods of the crossing, made the crossing, and was side-tracking west of Comstock station; that the passenger train which struck the vehicle did not stop at the station, but was from 20 to 25 minutes late, had slowed up before reaching the station, to get the signals, but had recovered its speed, was endeavoring to make time, and was running at the rate of 60 miles per hour, to get out of the way of the North Shore Limited, the fastest train on the road, and that the Limited came up within a few minutes after the collision; that the horse was thrown high in the air, and the train ran 100 rods after the buggy was struck; that the train whistled for the station, but did not whistle for the crossing.
The testimony was conflicting relative to the giving of the crossing signal, and the difficulty in observing the approaching train, and the claim is made that the testimony was sufficient to overcome the presumptions which ordinarily obtain in such case, as to the observance of ordinary care on the part of the boys. It is insisted that the statements of witnesses that they did not hear the whistle ought not to be considered, where there is positive proof that the whistle was actually given. There was a strong wind from the northwest. Witnesses who were just east of the station testified that they heard the station whistle, but that they heard no crossing whistle. Witnesses who were west of the crossing, north of the railroad right of way, and in a position to look up and down the railroad right of way towards the...
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