Flagg v. Chicago, D. & C.G.T.J.R. Co.

• Citation: 96 Mich. 30,55 N.W. 444
• Parties: FLAGG v. CHICAGO, D. & C. G. T. J. RY. CO.
• Decision Date: 01 June 1893
• Court: Supreme Court of Michigan

55 N.W. 444

96 Mich. 30

FLAGG v. CHICAGO, D. & C. G. T. J. RY. CO.

Supreme Court of Michigan

June 1, 1893

Error to circuit court, St. Clair county; Arthur L. Canfield Judge.

Action by Christina Flagg against the Chicago, Detroit & Canada Grand Trunk Junction Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error. Reversed.

E. W. Meddaugh, (O'Brien J. Atkinson, of counsel,) for appellant.

J. B McIlwain, (H. E. Chadwick, of counsel,) for appellee.

LONG J.

Plaintiff lives at Lakeport, about 10 miles from Port Huron. On the day of the accident she was returning from a visit at Port Huron to her home. She had solicited a ride with two young men by the name of Goodman, one about 19 and the other 14 years of age. They had a light wagon, drawn by one horse. On their way they drove to Ft. Gratiot, to get from the defendant company two trunks belonging to a party in Lakeport, and for which they had the checks. The horse they were driving was four years old, but well broken. Neither of these parties had ever been at the depot at Ft. Gratiot, and the horse had never been driven there. The situation of the streets, railroad tracks, and buildings of the defendant company is shown by the accompanying plat.

They drove down Michigan street to the tracks, and before turning into the depot grounds the older of the two boys got out of the wagon, went to the baggage room, saw the baggage man, who took the checks, and delivered him the two trunks, telling him to drive up to the platform to get them. He put them on a truck, and wheeled them out to the end of the platform, near the train dispatchers' office, and then returned for his horse and wagon. The horse was driven over the first line of tracks through the driveway, and turned round backing the end of the wagon to the north end of the platform, and opposite the train dispatchers' office. The older boy got out of the wagon, leaving the plaintiff and his brother in the wagon. The horse became restless, and the younger boy got out and took him by the bits. He began to rear, when the older boy went to his head. The horse finally started and ran northward, and, swinging to the right across the tracks, overturned the wagon, throwing the plaintiff out breaking her leg, and otherwise injuring her. The horse became frightened and unmanagable from the noise of an approaching train coming from the rear, and along the track on the east side of the depot. This action was brought to recover damages for the injury thus sustained by the plaintiff, and on the the trial she had verdict and judgment for $2,000.

The breach of duty alleged in the declaration is that if the defendant had taken proper precaution to protect life and property against such apparent danger as the operating of engines and cars along said mentioned switch tracks, it would have constructed and maintained a high board fence along the westerly side of its main switching tracks from said passenger, freight, and baggage platform, at the southerly end of said building known as the "dispatchers' office," etc.; or, had said defendant kept an employe or servant at said platform to warn strangers coming there with horses to receive or deliver freight or baggage, or to assist in holding such teams, or maintained hitching posts or rings for hitching horses, the accident would not have happened. The breach of duty assigned is as follows: "But, on the contrary, said yard, on the easterly side, and adjoining said main switching tracks, is wholly unfenced, and said tracks laid level with said yard for the whole distance, and has so existed for more than a year past; while passengers desiring to take said railroad train, or receive or deliver freight from or to said railroad, or to receive or deliver baggage transported over said railroad, are compelled to go by the route aforesaid through the yard aforesaid to said platform as the only means of access for such purposes." There is another allegation of negligence in the declaration, but which seems to have been abandoned on the trial. It was claimed by the declaration that the train was propelled along the tracks with great speed, and without any warning to the plaintiff or those in charge of the horse. On the trial, when proof was offered of this fact, the court stated to counsel that he did not understand that in the operating of the train there was any negligence alleged; and counsel for plaintiff agreed with the court's views, so that we may consider that question settled and out of the case. The only questions, therefore, for our consideration are (1) whether it was negligence on the part of defendant, under the circumstances, not to have built and maintained a fence along the side of these switch tracks; and (2) whether the plaintiff was in the exercise of due care.

RPT.CC.1893004061.00010

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The court below, upon the first question, directed the jury if they found that the want of such a barrier left the station grounds in a condition not reasonably safe, and plaintiff's injury would not have taken place except by reason of such insufficient condition, plaintiff and the Goodmans being in the exercise of due care, the plaintiff was entitled to recover. We think this charge was not warranted. Counsel for defendant had asked the court to instruct the jury substantially that the defendant was not bound to fence its depot grounds. This instruction should have been given. It was shown by the testimony of the station agent, and not disputed, that these grounds east of the dispatchers' office and north to Neil creek are used for passengers to get off and on trains; also for...