Grand Trunk Ry Co of Canada v. Ives

Decision Date04 April 1892
Citation36 L.Ed. 485,144 U.S. 408,12 S.Ct. 679
PartiesGRAND TRUNK RY. CO. OF CANADA v. IVES
CourtU.S. Supreme Court

E. W. Meddaugh and

Otto Kirchner, for plaintiff in error.

Don M. Dickinson and E. G. Stevenson, for defendant in error.

Mr. Justice LAMAR delivered the opinion of the court.

This was an action by Albert Ives, Jr., as administrator of the estate of Elijah Smith, deceased, against the Grand Trunk Railway Company of Canada, a Canadian corporation operating a line of railroad in Michigan, to recover damages for the alleged wrongful and negligent killing of plaintiff's intestate, without fault on his own part, by the railway company, at a street crossing in the city of Detroit. It was commenced in a state court, and was afterwards removed into the federal court on the ground of diverse citizenship. The action was brought under sections 3391 and 3392 of Howell's Annotated Statutes of Michigan, and, as stated in the declaration, was for the benefit of three daughters and one son of the deceased, whose names were given.

There was a trial before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for $5,000, with interest from the date of the verdict to the time the judgment was entered. The plaintiff offered to remit the interest, but the court refused to allow it to be done. The defendant then sued out this writ of error.

On the trial the plaintiff, to sustain the issues on his part, offered evidence tending to prove the following facts: Elijah Smith, plaintiff's intestate, at the time of his death, in May, 1884, was about 75 years of age, and had been residing on a farm, a few miles out of the city of Detroit, for several years, being engaged in grape culture. It was his custom to make one or more trips to the city every day during that period. In going to the city he traveled eastwardly on a much traveled road, known as the 'Holden Road,' which, continued into the city, becomes an important and well-known street running east and west. Within the limits of the city the street was crossed obliquely, at a grade, by the defendant's road and two other parallel roads coming up from the south-west, which roads, in the language of the defendant's engineer, curve 'away from a person coming down the Holden road.' At the crossing the Holden road is 65 1/2 feet wide. The defendant's right of way is 40 feet wide, and the right of way of all the parallel railways at that place is 160 feet wide.

For a considerable distance—at least 300 feet—along the right side of the road going into the city there were obstructions to a view of the railroad, consisting of a house known as the 'McLaughlin House,' a barn and its attendant outbuildings, an orchard in full bloom, and, about 76 feet from the defendant's track, another house, known as the 'Lawrence House.' Then there were some shrub bushes, or, as described by one witness, some stunted locust trees and a willow, a short distance from the line of the right of way. So that it seems, from all the evidence introduced on this point, that it was not until a traveler was within 15 or 20 feet of the track, and then going up the grade, that he could get an unobstructed view of the track to the right. One witness testified that, if he was in a buggy, his horse would be within 8 feet of the track before he could get a good view of it in both directions.

On the morning of the fatal accident, Mr. Smith and his wife were driving down the Holden road into Detroit, in a buggy with the top raised, and with the side curtains either raised or removed. Opposite the Lawrence house they stopped several minutes, presumably to listen for any trains that might be passing, and while there a train on one of the other roads passed by, going out of the city. Soon after it had crossed the road, and while the noise caused by it was still quite distinct, they drove on towards their destination. Just as they had reached the defendant's track, and while apparently watching the train that had passed, they were struck by one of the defendant's trains coming from the right at the rate of at least 20—some of the witnesses say 40—miles an hour, and were thrown into the air, carried some distance, and instantly killed. This train was a transfer train between two junctions, and was not running on any schedule time. The plaintiff's witnesses agree, substantially, in saying that the whistle was not blown for this crossing, nor was the bell rung, and that no signal whatever of the approach of the train was given until it was about to strike the buggy in which Mr. Smith and his wife were riding. The train ran on some 400 feet or more after striking Mr. Smith before it could be stopped.

It further appeared that an ordinance of the city of Detroit required railroad trains within its limits to run at a rate not exceeding six miles an hour; and it like wise appeared that there was no flagman or any one stationed at this crossing to warn travelers of approaching trains.

Most of the witnesses for the defense, consisting, for the main part, of its employes aboard the train at the time of the accident, testified, substantially, that the ordinary signals of blowing the whistle and ringing the bell were given before reaching the crossing, and that, in their opinion, the train was not moving faster than six miles an hour. It must be stated, however, that some of the defendant's witnesses, the brakeman among others, would not say that the ordinary signals were given, nor would they testify that the train was not moving faster than at the rate prescribed by the city ordinance; and one of its witnesses, in particular, testified that the train was moving 'about 20 miles an hour,—perhaps a little faster.'

A witness called by the plaintiff in rebuttal, an engineer of 45 years' standing, who was examined as an expert, testified that if the train ran on, after striking Mr. Smith, the distance it was said to have gone before it could be stopped, it must have been going at the rate of 25 or 30 miles an hour; and that if it had been going but 6 miles an hour, as claimed by the defendant, it could have been stopped in the length of the engine, and even without brakes would not have run more than 35 feet, if reversed.

The foregoing embraces the substance of all the evidence set forth in the bill of exceptions on the question of how the fatal accident occurred, and with respect to the alleged negligence of the defendant in the premises, and also the alleged contributory negligence of Mr. Smith.

At the close of the testimony the defendant submitted in writing a number of requests for instructions to the jury, which, if they had been given, would have virtually taken the case from the jury, and would have authorized them to bring in a verdict in its favor. The court refused to give any of them in the language requested, but gave some of them in a modified form, and embraced others in the general charge. The refusal to give the instructions requested was excepted to, and exceptions were also noted to various portions of the charge as given. As those exceptions are substantially embodied in the assignment of errors, they will not be further referred to here, but such of them as we deem material will be considered in a subsequent part of this opinion.

The first point raised by the defendant, and urgently insisted upon as being embraced in the assignment of errors, is that there is no evidence in this record that Mr. Smith left any one dependent upon him for support, and that, therefore, no right of action could be in the plaintiff, as his administrator, under the Michigan statutes, against the defendant, for causing his death.

Sections 3391 and 3392 of Howell's Annotated Statutes of Michigan, under which this action was brought, provide as follows:

'Sec. 3391. Whenever the death of a person shall be caused by wrongful act, neglect, or default of any railroad company, or its agents, and the act, neglect, or default is such as would (if death had not ensued) entitle the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the railroad corporation which would have been liable if death had not ensued shall be liable to an action on the case for damages, notwithstanding the death of the person so injured, and although the death shall have been caused under such circumstances as amount in law to felony.

'Sec. 3392. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in any such action shall be distributed to the persons, and in the proportion, provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may gives such amount of damages as they shall deem fair and just to the persons who may be entitled to such damages when recovered: provided, nothing herein contained shall affect any suit or proceedings heretofore commenced and now pending in any of the courts of this state.'

According to the decisions of the supreme court of Michigan bearing upon the construction of these sections, a right of action will not arise for the negligent killing of a person by a railroad company, unless the deceased left some one dependent upon him for support, or some one who had a reasonable expectation of receiving some benefit from him during his life-time. Railway Co. v. Bayfield, 37 Mich. 205; Van Brunt v. Railroad Co., 78 Mich. 530, 44 N. W. Rep. 321; Cooper v. Railway Co., 66 Mich. 261, 33 N. W. Rep. 306.

But it seems to us that no question concerning this phase of the case can arise here upon this record. The declaration averred that the action was brought for the benefit of three daughters and one son of the deceased, whose names were given; and the defendant's plea was merely in the nature of a plea of the general issue, stating simply that the defendant 'demands a trial of the matters set forth in the plaintiff's...

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