Flint & Pere Marquette Railway Company v. Lull

• Decision Date: 13 January 1874
• Citation: 28 Mich. 510
• Court: Michigan Supreme Court
• Parties: The Flint & Pere Marquette Railway Company v. Charles A. Lull

28 Mich. 510

The Flint & Pere Marquette Railway Company v. Charles A. Lull

Supreme Court of Michigan

January 13, 1874

Submitted on Briefs January 9, 1874

Error to Saginaw Circuit. Affirmed.

Judgment affirmed, with costs.

William L. Webber, for plaintiff in error.

D. W C. Gage, for defendant in error.

Cooley J. Campbell, J., and Graves, Ch. J., concurred. Christiancy J., did not sit in this case.

OPINION

Cooley, J.

Lull sued the railway company to recover the value of a cow killed by one of its trains passing through the village of Bridgeport. The right of recovery is based upon an amendment to section thirty-six of the general railroad act approved March 29, 1872, (Laws 1872, page 72), which reads as follows:

"Sec. 36. Every railroad company formed under this act, and every person or corporation owning or occupying any such railway, shall erect and maintain fences on the sides of their respective roads, of the height and strength of a division fence required by law, with suitable openings and gates or bars therein, convenient for farm crossings of the road, for the use of the proprietors of the lands adjoining such railway, or, in lieu of such fences, shall make ditches or other obstruction that would be equivalent to such fences, for the protection of such adjacent proprietors, and shall also construct and maintain cattle-guards at all road crossings, suitable and sufficient to prevent cattle and other animals from getting onto such railway. The sufficiency of such fence, ditch, or other obstruction in lieu of a fence, may be determined by the proper fence-viewers; and the provisions of law relating to partition fences shall apply to railroad fences, except that the company shall build and maintain the entire fence, ditch, or other obstruction at its sole expense. Until such fences and cattle-guards or ditches shall be duly made, such company, person, or corporation, while operating its road, shall be liable for all damages done to cattle, horses, or other animals thereon, and all other damages which may result from the neglect of such company, person, or corporation to construct and maintain such fences, and cattle-guards, or ditches as aforesaid, and after such fences and cattle-guards, or ditches shall be duly made and maintained, such company, person, or corporation shall not be liable for any such damages, unless negligently or willfully done; and if any person shall ride, lead, or drive, or intentionally permit any horse or other animal upon such road and within such fences and cattle-guards or ditches, other than at farm crossings, or shall injure or destroy or make openings or passages through or over such fences, cattle-guards, or ditches, without the consent of such company, person, or corporation, he shall for every such offense be liable to a fine not exceeding one hundred dollars, or imprisonment for a term not exceeding three months in the county jail, or both such fine and imprisonment, in the discretion of the court, and shall also pay all damages that shall be sustained thereby, to the party aggrieved."

The evidence on the trial showed that just after dark, and about an hour before the injury to the cow occurred, on the evening of August 7, 1872, the cow was turned into the street by the plaintiff's servant to keep her away from her calf during the night, and allow her to go to the river for water, and that plaintiff's cattle to get to the river were in the habit of crossing defendant's railway at or near the point where the injury occurred. The defendant conceded that at the time of the injury there was no cattle-guard on the railway on the south side of the highway crossing defendant's road at Bridgeport at or near which the injury occurred, and no fence on the east side of the railway between such crossing and the river, and that plaintiff was then the owner and occupant of the land on both sides of the railway between such crossing and the river. The jury found that the cow was killed on the railway track south of the highway.

On behalf of defendant the circuit judge was requested to charge the jury that if the cow was at large unattended in the highway near the railway crossing, and if she strayed from the highway upon the railway track, although the company may have been at fault in not having a sufficient cattle-guard or fence at that place, yet the plaintiff's negligence in allowing the cow thus at large near a railway crossing will prevent a recovery in this action. This request was refused, and the judge on the contrary instructed the jury that the liability of the defendant is absolute, if the cow passed upon the railroad track in consequence of the neglect of defendant to have there a sufficient cattle-guard to prevent her passing from the highway upon the track, or if she passed upon the track where there should have been a fence, and it is conceded there was none; and that if she was killed on the track south of the highway their verdict must be for the plaintiff without regard to any other question. The jury accordingly found for the plaintiff.

It is now contended, on behalf of the railway company, that the obligation under the statute to fence its track and put in cattle-guards has no application to that portion of its road within the limits of a city or village. This...