East Saginaw C. R. Co. v. Bohn

• Decision Date: 22 July 1873
• Citation: 27 Mich. 503
• Court: Michigan Supreme Court
• Parties: The East Saginaw City Railway Co. v. August Bohn

27 Mich. 503

The East Saginaw City Railway Co. v. August Bohn

Supreme Court of Michigan

July 22, 1873

Heard July 17, 1873

Error to Saginaw Circuit.

Judgment affirmed, with costs.

Sutherland & Wheeler, for plaintiff in error.

Frederic L. Eaton and Albert Trask, for defendant in error.

OPINION

Cooley J.

The suit in the court below was brought against the railway company on behalf of August Bohn, an infant, to recover damages for an injury done to him by one of the cars of the company, and, as is claimed, through the negligence of its servants. The declaration avers that on the fourth day of August, 1869, the railway company was a carrier of passengers by cars drawn by horses over its track, laid down in certain streets in the city of East Saginaw, and to a certain point in South Saginaw, which cars, as well as the persons who should become passengers upon said railway, were under the power, control and management of certain servants of said company; that the plaintiff, being then an infant of the age of four years, become a passenger on one of said cars, with the permission and consent of defendant; that he entered upon the front end of said car, and finding the door thereof closed and the way thereto barred and obstructed by trunks boxes of merchandise and other freight, he (the said plaintiff), with the consent and permission of said defendant, was seated upon the platform of said car with other passengers then and there being carried by said defendant, and under the care, charge and direction of said defendant, and in that position started upon his journey from a point where Genesee street crosses said track to another point opposite Darmstetter's brewery; that while so seated, the driver of said car, being then and there a servant of said defendant, and having the care and control of such passengers, occupied a part of such platform, and the conductor of said car, being then and there also a servant of said defendant, and having the care, control and management of said car and all persons thereon or about said car, opened said door from the inside thereof, and collected the fare of the passengers upon said platform, and then returned to the inside of said car and closed the door thereof. And plaintiff avers that the said defendant then and there carelessly, negligently and wantonly consented, permitted and required the said plaintiff, while so being transported as aforesaid, to pursue his said journey upon the said platform in a careless, unsafe, dangerous and exposed situation; that before the car reached the end of plaintiff's said journey, he (the plaintiff), while using all due care, diligence and caution, was thrown violently to the ground, by the motion of said car, in such a manner that the wheels of said car passed over his left leg, and broke and injured it in such a manner that amputation thereof became necessary to save the life of said plaintiff.

On the trial it was not disputed that an injury occurred to the plaintiff in the manner and of the nature alleged, and the questions raised were, whether the servants of the defendant were guilty of negligence contributing to the injury, and if so, then whether the plaintiff or those in whose charge he was, in fact or in law, were not also guilty of contributory negligence of a nature and degree which would preclude recovery. To understand the legal questions, it may be advisable to present the several accounts of the transaction given by the plaintiff's brother, who was with him at the time,--the plaintiff himself being too young to be sworn--and the conductor of the car and one passenger. The driver was not sworn.

The brother, Henry Bohn, testified that at the time of the injury he was about twelve years and six months old, and the plaintiff four years and five months; that about eleven o'clock in the forenoon his mother sent him with a jug to a store after a gallon of vinegar; the distance appears to have been about a mile; the plaintiff wanted to go along, and was at first refused permission, but the mother after-wards consented, and told the witness that they should walk down, but might take a street car back, and gave him money to pay the fare; they went accordingly and got the vinegar, and returning took a street car, which, however, was found to be going only a part of the distance, and they were obliged to get out and wait for another. When the second car came along, they got upon the front platform; there was a lot of boxes there piled up, with trunks on top of them half way to the top of the door; the driver was on the platform, and a Mr. Randall; the boys sat down on the platform with their feet on the steps, and the witness held the jug between his legs; after the car started the conductor came out to take the fare; he put his hand on the shoulder of the witness, who looked up, and seeing what was wanted, paid him six cents; then the conductor told the driver to let the boys off at the brewery, and then went back into the car and shut the door; he said nothing more, and quitted the car right afterwards; before they got to the brewery plaintiff stood up to see if they were near home, and just as he went to sit down the jarring of the car tore away the hand of witness from plaintiff; witness was not looking at plaintiff at the time, and when he looked around he was gone; the driver asked him if his brother fell off, and witness replied, yes; the driver hit his horses and went right on; witness asked him to stop, but he did not, and witness picked up the jug and jumped off, and found his brother had been run over and one leg crushed.

The evidence of the conductor differs from that of this witness in several important particulars. He denies that the front platform of the car was occupied by boxes or trunks, though he says there was a basket standing there, and he also says that when he went out on the platform and took the fare from the older boy, he told them to come into the car. Randall, the passenger who was on the platform with the boys, corroborates the conductor as to the absence of boxes or trunks. He also claims to have been looking at the little boy at the time of the occurrence, and testifies that he jumped off, and that when the older boy asked the driver to stop and let him off, he checked the speed of his horses, though he did not stop.

This is perhaps a sufficient statement of the evidence given to answer the purpose of presenting the legal points. The defense insisted that the allegation in the declaration that the plaintiff, when he entered upon the platform, found the door closed and obstructed by boxes, etc., and seated himself on the platform with permission of the company, etc., was material, and must be proved. The defense also claimed, and requested the judge to charge the jury, that if the plaintiff on the occasion in question rode upon the car with the knowledge and permission of his mother, she knowing that he was attended by no other person than his brother, a youth of the age of twelve or thirteen, and that plaintiff fell off or jumped from the cars voluntarily, or from a want of discretion, and because he was not properly guarded by his attendant, he was not entitled to recover. Also, that if the plaintiff, before the accident, was seated on the platform of the car with his feet on the step and some means of holding himself in his seat by his hands, and that he was in company with an older brother capable of exercising a reasonable discretion for the plaintiff's safety, and that he was safe while thus sitting, from being thrown off the car by its motion, the defendant's servants in charge of the car were not required to exercise care or oversight to prevent the plaintiff from voluntarily changing his position, and thereby exposing himself to be jostled off the car, or from attempting, with childish indiscretion, to get off the car while in motion. Also, that if from the plaintiff's evidence it is doubtful whether the plaintiff jumped off or fell off from the car, the plaintiff could not recover. Also, that if there were seats inside the car, and plaintiff was seated on the platform by his brother, with the intention to ride there to their destination, and was told by the conductor to come in, and did not, and the accident would not have occurred if they had been in the car, the plaintiff could not recover. These requests and others of like nature were refused.

The requests in effect assume that if the older of the two boys was wanting in discretion for the protection of himself and his brother, it was negligence in the mother to permit the plaintiff to go upon the cars without other attendance; and if the brother had such discretion, then it was negligence in him to seat himself and the plaintiff on the platform as he did; and in either case the defendant would be excused from legal responsibility for the negligence imputed to them, because the injury resulted from the concurrent negligence of the mother or brother, who, for the time, must be regarded as occupying the position of guardian for the plaintiff, and whose negligence, therefore, was in law imputable to the plaintiff himself.

If the railway company at the time had been under no obligation of care or responsibility for the plaintiff as a passenger upon their cars, the question of liability would be very different from the one now presented. But this company hold themselves out as carriers of passengers for all who may come, and provide vehicles which promise reasonably protection and security to those who commit themselves to their...