Gilbert v. Flint & P.M. Ry. Co.
| Decision Date | 17 October 1883 |
| Citation | 51 Mich. 488,16 N.W. 868 |
| Parties | GILBERT v. FLINT & P.M. RY. CO. |
| Court | Michigan Supreme Court |
Judicial notice will be taken that a box freight car in a state of rest at a highway crossing is not per se a frightful object to horses of ordinary gentleness; the question is not for the jury.
Error to Genesee.
Long & Gold, for plaintiff.
Wm. L Webber, for defendant and appellant.
The defendant has a main and side track which cross a common highway near the station building at the village of Grand Blanc. The traveled portion of the way at the place of crossing is planked to the width of about 32 feet. In the course of its business the company left an ordinary box freight car standing on the side track, and within the legal limits of the highway. It occupied about one-half of the traveled part, leaving ample room for the easy passage of teams. The plaintiff, in going to Mr. Stone's to dinner rode in a buggy with Mr. Lyman past this car without any inconvenience. But when he returned in a buggy with Mr Stone, the horse, on coming to the track, suddenly started to one side, and as a consequence the plaintiff lost his balance, and either fell or was thrown in contact with the wheel, and was injured. He brought this action for the injury, and was allowed to recover.
The record raises two or three questions, but only one need be noticed. It is important to fix attention upon the exact ground of the action. As laid in the declaration, the essence of the plaintiff's case is that the horse, though one of ordinary gentleness, took fright at the car, and which was a thing well calculated and naturally would frighten horses of that character, and hence that its being left there was actionable negligence and a basis of liability to the plaintiff. We observe, then, that the act complained of is not the act of leaving a freight car standing on a part of the highway. The particular fault charged is the fault of leaving at that place a vehicle or article which would naturally frighten horses of ordinary gentleness. The mere presence of the car in a portion of the highway, and apart from its fitness or liability to produce that consequence, is not counted on as matter of grievance. The right of action was rested on the assumption that the car there standing was a thing which would naturally scare usually gentle horses. It was, therefore, a vital question whether it was really a cause of that kind of danger or not; because, if it was not dangerous in that way, there was no foundation for the action.
The defendant's counsel contended at the trial that the question was one for the court, but the learned judge overruled the point, and decided that it was a subject for the jury. We are unable to concur in this ruling. There are a vast variety of things which must be regarded as matters of common knowledge; things which every adult person of ordinary experience or intelligence must be presumed to know; things which do not require to be pleaded or to be made...
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