Grand Rapids & I.R. Co. v. Martin

• Decision Date: 21 October 1879
• Citation: 41 Mich. 667,3 N.W. 173
• Parties: GRAND RAPIDS & INDIANA R. CO. v. CHARLES MARTIN.
• Court: Michigan Supreme Court

3 N.W. 173

41 Mich. 667

GRAND RAPIDS & INDIANA R. CO. v. CHARLES MARTIN.

Supreme Court of Michigan

October 21, 1879

Plaintiff was injured while properly upon a passage, over which no railway tracks ran, in consequence of car standing upon a track abutting upon such passage being struck by a train, its fastening loosed, and such car driven off the end of the track into such passage. Held, that the danger was not one plaintiff could well anticipate, and that the question of contributory negligence was properly submitted to the jury and that there was evidence of negligence on part of the company. Evidence of plaintiff's business held competent on the question of damages sustained. The statute protecting communications made to a physician creates a personal privilege only, which can be waived by a party for whose benefit it exists. Jurors are the judges of the weight of the testimony presented, and instructions upon such point should be carefully and guardedly given.

Error to Kalamazoo.

Hughes O'Brien & Linsley, for plaintiff in error.

H.C. Briggs, for defendant in error.

CAMPBELL, C.J.

Martin recovered a judgment of $550 damages against the railroad company for injuries suffered on their depot grounds at Kalamazoo, by reason of having the wagon in which he was approaching the depot struck by a car driven from the place where it had been standing by a freight train violently driven against it.

Martin was at the time driving through an open way or passage opened for that purpose by the company, and was conveying another person with several bushels of potatoes to the cars. The passage was not at any place crossed by tracks, but car tracks were laid up to it on either side, and were not protected by posts or other defences. Under the charge of the court the jury must have found that Martin was there in a lawful and usual way, and at a proper time and on a proper errand. The car which struck him was, when he drove in standing on the track close to the passage. If it was protected in any way it was by brakes, which gave way. It was struck by a freight train propelled by a locomotive, and was driven forcibly enough to destroy the brake-fastening, if it had one, and to push it from the track so that it went against Martin's wagon, and moved it on about the car's length, badly injuring Martin himself, and breaking his vehicle. His business was making gloves and lashes, and his own part in the business was chiefly attending to cutting the gloves and seeing to the tanning and mixing the tanning materials. His witnesses testified to serious bodily injuries, producing continued effects, and interfering with the conduct of his affairs.

There are several assignments of error, but the points involved are few and simple. The charge was very carefully guarded and extremely fair, and for most of the points presented there is not much occasion for discussion.

Several assignments rest on a claim that plaintiff was guilty of contributory negligence, and could not recover. The jury found that he was not, and we cannot discover any reason to doubt the justice of their conclusion. Certainly there was nothing entitling plaintiff in error to have this taken from the jury. It cannot be necessarily negligence for a person who is, by the invitation of a railroad company, going over an open passage prepared for that very purpose to give access to their depot, to assume it will be safe. No one is bound to imagine that cars will be driven where there is no car track on a passage way which he is expected to use with his wagon. He has a right to expect that the...