Graf v. Chicago & N.W.R. Co.
| Decision Date | 10 February 1893 |
| Citation | 94 Mich. 579,54 N.W. 388 |
| Parties | GRAF v. CHICAGO & N.W. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Menominee county; John W. Stone, Judge.
Action by William Graf, as administrator, against the Chicago & Northwestern Railway Company, for the alleged negligent killing of plaintiff's intestate. From a judgment for defendant, plaintiff appeals. Affirmed.
Hayden & Young, for appellant.
E. E Osborn, for appellee.
The accident which caused the death of plaintiff's decedent occurred upon defendant's right of way, and upon a public street, crossing said right of way nearly at right angles. Iron Mountain, where the accident occurred, is strictly a mining town, of about 10,000 inhabitants. The railroad was early constructed to the mines first discovered and opened. Other mines were afterwards discovered, and, in course of time, the town was built on each side of the track, which now divides the population about equally. The situation will be best seen from the following map:
(Image Omitted) The accident occurred upon Flesheim street, which is 70 feet wide, with a sidewalk on the south side which is 6 feet wide which extends across the right of way. This street crosses the defendant's yard where trains loaded with iron ore are made up for transportation, northward, to the lake port of Escanaba. The track, which diverges eastward at Brown street, leads to the Millie mine. The distance between Flesheim and Brown streets is 260 feet. Some six or seven cars loaded with ore had been drawn from the Millie mine past the switch between Brown and Ludington streets, and were shunted or backed by the engine into the yard. The east track is the main one. Eleven feet west of the main track is a side track, leading to the coal sheds of the Chapin mine, 200 feet north of the crossing. Twenty-one and a half feet west of this side track is another track, leading to a lumber yard. The tracks were level. At or near the Brown street crossing the engine was detached from the cars, having imparted sufficient momentum to propel them to the required place in the yard. The deceased worked at the Chapin mine on the east side of the track, and north of the crossing, and lived on the west side, about three blocks from the crossing. The deceased was 25 years of age, and in the full possession of all his faculties. He was proceeding to his work on the sidewalk on the south side of Flesheim street and, just as he stepped upon the middle or main track, was struck by the first car, and injured so that he died shortly after. Plaintiff claims that the deceased was struck upon the middle track, while defendant claims that he was struck upon the main track. This is the main fact in dispute in the case, but, in the view we take of the case, it is immaterial upon which track the accident occurred. These cars were shunted or backed in the usual manner. The deceased was familiar with the situation, and with the manner in which the work was done. He had crossed these tracks daily for about two months. He approached and crossed the track at a rapid walk. It was broad daylight, about 6:30 P. M., in June, and the sun was shining at his back. His view of the tracks to the south was more or less obstructed by the lumber piled along and near defendant's right of way, but as he reached the right of way he had a clear and unobstructed view for 1,000 feet to the south. There is evidence that as he reached that point he looked to the south, but did not stop or slacken his speed, and was not seen to look again before he was struck. At this point he was fully 30 feet from the middle track. No other cars were upon the track, and there was nothing to obstruct his view of the approaching train. One disinterested witness, Henry Remy, stood in the office of the city lumber yard, on the north side of the street, saw him walk across, saw the train coming, and testified that he never thought deceased would cross in his position. Witness immediately went over on seeing the accident, and testified that deceased said,
It is charged in the declaration that the defendant was guilty of gross negligence in running said cars over this street crossing at a great and reckless speed, and faster than six miles per hour, detached from the locomotive and unaccompanied by...
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