La Flamme v. Detroit & M. Ry. Co.

• Citation: 67 N.W. 556,109 Mich. 509
• Parties: LA FLAMME ET AL. v. DETROIT & M. RY. CO.
• Decision Date: 26 May 1896
• Court: Michigan Supreme Court

67 N.W. 556

109 Mich. 509

LA FLAMME ET AL. v. DETROIT & M. RY. CO.

Supreme Court of Michigan

May 26, 1896

Error to circuit court, Iosco county; William H. Simpson, Judge.

Action by Joseph La Flamme and another against the Detroit &amp Mackinaw Railway Company to recover the value of a horse killed on defendant's right of way. Plaintiffs had judgment, and defendant brings error. Reversed.

Albert E. Sharpe, for appellant.

Henry &amp Pugh, for appellees.

HOOKER J.

Plaintiffs' horse walked over a cattle guard upon the defendant's railroad track, and was killed. The defendant appeals from a verdict for its value. The cattle guard was a patent one known as the "National Surface Cattle Guard," and it appeared that the cattle were in the habit of walking over it, and that the plaintiffs' tenant turned his horse into the road with the knowledge that he had crossed said cattle guard. Counsel for the defendant contend that the cattle guard was sufficient, and that, therefore, there could be no recovery. The claim was based upon a printed paper over the name of a former railroad commissioner of this state, approving that kind of cattle guard (which was a patented article, having a definite name), and authorizing its use upon another railroad. This certificate of approval rests upon section 3377, 3 How. Ann. St., which, after requiring the construction of cattle guards, contains the following, viz.: "Provided, that any fence or cattle guard which shall have the written approval or indorsement of the commissioner of railroads of this state, and which fence is not less than four and one-half feet in height, and is otherwise equal in durability, strength and sufficiency to turn animals and stock to the fences herein described, shall be a legal railroad fence or cattle guard."

The court instructed the jury that "the defendant has put in evidence here a certain paper from the commissioner of railroads showing that the cattle guard, the kind of cattle guard, that they did put in there, was one approved by the commissioner. Now, gentlemen of the jury, that is evidence to show what kind of cattle guard it was. We have a statute that says that a cattle guard approved by the commissioner of railroads shall be deemed sufficient; but I am inclined to construe that law to mean that it shall only make it positively such a one as shall stand and be a defense only where the commissioner has approved it after it is...