Gardner v. Detroit, L. & N.R. Co.

• Decision Date: 27 October 1893
• Citation: 97 Mich. 240,56 N.W. 603
• Parties: GARDNER v. DETROIT, L. & N. R. CO.
• Court: Michigan Supreme Court

56 N.W. 603

97 Mich. 240

GARDNER v. DETROIT, L. & N. R. CO.

Supreme Court of Michigan

October 27, 1893

Error to circuit court, Ionia county; Vernon H. Smith, Judge.

Action by John Gardner against the Detroit, Lansing & Northern Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error. Reversed.

Charles B. Lothrop, for appellant.

F. D M. Davis and George E. Nichols, for appellee.

LONG J.

Plaintiff had verdict and judgment on the trial in the court below for negligent injuries. Defendant brings error, and insists that under the plaintiff's own testimony and the special findings of the jury the judgment should have been entered for defendant. It appears that the defendant company operated its line of road through the city of Ionia. The tracks-seven in number-cross what is known as "Depot Street." This street leads to the Detroit, Grand Haven & Milwaukee Depot, and is a common thoroughfare, used and traveled by a large number of people daily, and has sidewalks upon either side crossing over defendant's tracks. These seven tracks are parallel as they cross the street, and one is the main track. There is a switch track about 15 feet east of the sidewalk on the east side of this street, running east and north of the defendant's warehouse. The main track is the most northern one where it crosses Depot street, but easterly it crosses several of the switch tracks to the south. The tracks that lie south of the main track are almost constantly filled with cars, both east and west of Depot street, which are being constantly moved and handled by yard engines. In fact the space both east and west of Depot street is used as the defendant's yard. On the afternoon of March 7, 1891, the plaintiff was walking along the sidewalk on the east side of Depot street to the Detroit, Grand Haven & Milwaukee Depot to take the train on that road, and just as he stepped upon the main track was struck by one of defendant's passenger trains, and permanently injured. The negligence claimed in the declaration is that the train was running at an unlawful rate of speed, and that no bell or whistle was sounded, and that plaintiff's view was obstructed by the cars on the side track, so that he was unable to see down the main track. Plaintiff's testimony tended to substantiate the claim that no bell or whistle was sounded. It is also claimed that his testimony tended to show that he was in the exercise of due care. He testified that he came down the west side of Depot street towards the depot where he intended taking the train, to the Dexter House corner. There he crossed over to the east side of the street and turned again towards the depot. As he turned to go south again on Depot street, he had a view down the track, but neither saw nor heard a train. As he proceeded south his view was entirely obstructed by freight cars standing on the switch track east, and just as he passed out from behind these freight cars his hat blew off. He took one more step when he could see east down the main track. Looking to the east, he claims he saw no train; that at this moment his attention was diverted by a switch engine, which was on the other side of the street, and south of him, ringing its bell and blowing off steam, and he thought he then took one step more, so that he was on the south side of the track, and at this point he was struck. He testified that before getting to this main track he looked to see whether there was a train coming, and saw this switch engine playing backward and forward, making considerable noise; that he was not familiar with the tracks, or the particular use of any, but knew that there were several tracks there, but knew nothing of any train coming, and was struck upon the first track he came to, and just as his foot was over the south rail. After the evidence was all in on the part of the plaintiff, defendant's counsel rested, and asked an instruction that the plaintiff's own testimony showed him guilty of contributory negligence. This instruction was refused, and defendant's counsel then asked that the following special questions be submitted to the jury: "(1) Was not the end of these cars which was nearest to Gardner one hundred feet from the crossing where he was when he crossed the street? (2) Was not the southwest corner of the box car nearest Depot street at least five feet from the north rail of defendant's main track? (3) Could not Gardner, at any point on the walk, when he was...