Finnegan v. Michigan Cent. R. Co.

• Decision Date: 04 June 1901
• Court: Michigan Supreme Court
• Parties: FINNEGAN v. MICHIGAN CENT. R. CO.

86 N.W. 395

127 Mich. 15

FINNEGAN v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

June 4, 1901

Error to circuit court, Washtenaw county; Edward D. Kinne, Judge.

Action by William Finnegan against the Michigan Central Railroad Company. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Lawrence & Butterfield, for appellant.

Lehmann Bros. & Stivers, for appellee.

MONTGOMERY C.J.

On the 10th of August, 1898, one Greenman, who was in the employ of defendant, and Don Finnegan, a boy 15 years old, were struck by an engine of the defendant, and killed. The tracks of the Michigan Central Railroad Company at Ann Arbor, going towards Chicago from the passenger house, for about 600 or 800 feet run in a westerly direction, and then take a sharp curve in a northwesterly direction. At nearly the stiffest point of the curve is located the overhead bridge of the Ann Arbor Railroad Company. East of the railroad is the embankment and dam of the Ann Arbor Milling Company, and, a short distance from the overhead bridge of the Ann Arbor Railroad, on the west side of the tracks, are Kyer's gristmill, a cooper shop, and stock yards. On the southwest side of the mill pond, and adjacent to the railroad grounds there were a number of private boat houses, that had been there for 15 or 18 years. There was, at the time of the accident, one public boat house adjoining the railroad, and upon land owned by the Ann Arbor Milling Company, which one Paul Tessmer held possession of under a lease from the milling company. There was a platform or gangway which rested at one end upon the embankment of the railroad. The railroad premises opposite these boat houses were unfenced, and were a part of the depot yeards of the defendant. On the west side of the tracks, between the gristmill and the cooper shop, is an open space; also one between the cooper shop and the stock yards. Many persons, for many years, have been accustomed to pass through these openings, and cross the track of the Michigan Central Railroad Company, for the purpose of going either to the boat house of Tessmer, or to go skating or swimming, or to pass over the milldam. A majority of the people who frequented this locality came on the tracks near the passenger house, and walked up to the mill pond. On this right of way of the railroad company there is no well-defined path or passageway, but people crossed wherever it suited their convenience, as the grounds were open, and one part of the right of way was as good as another for that purpose, it all being level and hard. There was no indication of any beaten path over the tracks. There was a beaten path near the cooper shop, and one near the stock yard, but there was no fence along the railroad, and persons crossed most anywhere. The tracks of the defendant, at about the point where the bridge of the Ann Arbor road crosses its right of way, make a sharp curve in a northwesterly direction, and run more nearly straight, for over half a mile, towards what is known as the 'Whitmore Lake Crossing.' On the 10th day of August, 1898, Mr Greenman was employed by the defendant to work in its freight house, and also to attend to lighting the switch lamps, west of Mann Arbor station. In the afternoon of the day above mentioned he was seen, about 2 o'clock, going up the track to attend to his duties. When he was returning down the tracks, coming from his work, the plaintiff's intestate was with him. There is a little shop about 500 feet west of the Ann Arbor bridge, occupied by a car inspector. Mr Greenman and Don Finnegan were seen to pass this little shop...