Freeman v. Duluth, S.S. & A.R. Co.
| Decision Date | 08 February 1889 |
| Citation | 74 Mich. 86,41 N.W. 872 |
| Parties | FREEMAN ET AL. v. DULUTH, S. S. & A. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Marquette county; GRANT, Judge.
Action by George Freeman and others against the Duluth, South Shore & Atlantic Railway Company, to recover the value of a horse and carriage destroyed by a collision with defendant's engine. Defendant appeals from a judgment for plaintiffs.
The plaintiffs sue for the value of a horse and carriage destroyed by collision with an engine on defendant's track at the Genesee-Street crossing in the city of Marquette. The plaintiffs keep a livery-stable in said city and on the day of the accident hired the horse and carriage to one John Grant, who was driving the same at the time of the collision. During the course of the trial, by mutual consent of the parties, the place of the accident was visited. The following appears in the record in reference to such visit: A diagram showing the streets measurements, and railroad track is given below:
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It will thus be seen that it was established as an undisputed fact in the case that a person standing in the center of Genesee street, at the point B, could see the top of a locomotive at the point A, 179 feet north of the intersection of the railroad track with the center of said Genesee street. It was also conceded on the argument here that the nearer you approached the railroad track from the point B, the further you could see a locomotive coming from the north on said track, while west of the point B, between such point and Champion street, the view of the track north of Genesee street was nearly, if not entirely, obstructed and shut off by the high bank on the north side of said street. The jury were charged by the court, and retired to deliberate upon the case. After being out for a time, they returned into court for further instructions, whereupon the following proceedings took place: The court then read to them what he had before instructed them in regard to the duty of the defendant to have a watchman or flag-man at this street, and added some further remarks to the same import, and in the same direction, which instructions we shall refer to hereafter. It will therefore be seen that it is to be presumed from this colloquy between the court and jury that the questions whether the whistle was blown and the bell rung in compliance with the statute, and in such manner that there was no negligence on the part of defendant in either of these respects, had been determined in favor of the defendant, and that the sole negligence remaining to be found against the railroad company was that of the absence of a flag-man at this crossing; and if the absence of such flag-man was not negligence, the plaintiffs ought not to, and would not, have recovered. The contention of the defendant is that it was not negligence. It is claimed that under the statutes of this state the duty of determining where a flag-man shall be stationed devolves on the railroad commissioner; and that, in order to hold defendant liable for such negligence in this case, it should have appeared in proof that the railroad commissioner had ordered a flag-man to be stationed at this crossing, and that his orders were not obeyed; or that the crossing was such an exceptionally dangerous one that a common-law duty was imposed on the defendant to keep a flag-man at that point; and that no showing of this kind was made in this case. We think the judge below ruled correctly on this point, and in accordance with our previous decisions. The jury were instructed, substantially, that it is not the law of this state that at every road or street crossing in a village or city a railroad company is bound to place a flag-man. The law put upon the railroad commissioner the duty of determining the necessity of establishing a flag-man upon any particular street crossing of a railroad, and the absence of a flag-man at Genesee street crossing, where the accident occurred, is of itself no evidence of negligence upon the part of the defendant. And the plaintiff must show that the circumstances of the crossing are such that common prudence would dictate that the railroad company should place a flag-man there, or his equivalent. That before the jury could find this, it must be made to appear to them that the danger at the crossing was altogether exceptional,-that there was something about the case rendering ordinary care on the part of the witness Grant (the driver of the horse and carriage) an insufficient protection against injury, and therefore made the assumption of the burden of a flag-man on the part of the railroad company a matter of common duty for the safety of people crossing. If any fault can be found with this charge, it was too favorable to the defendant, in that it connected the necessity of keeping a flag-man at this crossing with the use of ordinary care on the part of Grant. The duty of maintaining a flag-man at this point did not depend on the question whether Grant, in this particular instance, could by common prudence have avoided this collision or not. It depended rather upon the situation of the crossing, its relation to the travel upon the street generally, and the facilities afforded, not only the travelers on the street, but the train-men on the cars, to avoid collisions and accidents of this kind, without a flag-man to give warning of approaching trains.
I think the jury were warranted in finding it to be negligence in the defendant in not providing a watchman at this point. It seems that to the south from Genesee street there was a steep up-grade, so that a train of loaded cars must, in order to ascend the same, cross the street at a higher rate of speed than...
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