Guggenheim v. Lake Shore & M.S.R. Co.

• Decision Date: 09 June 1887
• Citation: 33 N.W. 161,66 Mich. 150
• Parties: GUGGENHEIM, Adm'r, etc., v. LAKE SHORE & M.S. RY. CO.
• Court: Michigan Supreme Court

33 N.W. 161

66 Mich. 150

GUGGENHEIM, Adm'r, etc., v. LAKE SHORE & M.S. RY. CO.

Supreme Court of Michigan

June 9, 1887

Error to circuit court, Hillsdale county.

E.L. Koon and M. McIntyre, for Guggenheim defendant in error.

Weaver & Weaver and George C. Greene, (Ashley Pond and O.G Getzen-Danner, of counsel,) for the company, plaintiff in error.

MORSE J.

This case was before this court in the April term of 1885, and an opinion filed therein September 29, 1885. It is reported in 57 Mich. 488, 24 N.W. 827. The surroundings of the track and crossing where the accident occurred are fully described in the opinion of Mr. Justice SHERWOOD in that case, and need not be restated, except in such instances as may be necessary to make clear some of the points now raised and here disposed of.

It is again contended that the court below should have instructed the jury that the plaintiff could not recover because of the contributory negligence of the deceased. After a careful examination of the evidence, I am of the opinion that there was testimony in the case sufficient to go to the jury upon the question of the due care and prudence of Manheimer in attempting to make the crossing. There was also evidence tending to show negligence upon the part of the defendant which was the proximate cause of the death of plaintiff's intestate.

It is claimed that there is additional evidence showing almost conclusively that Manheimer was warned of the coming of the train just before he reached the track,--testimony not given upon the previous trial. In the main the evidence adduced on the part of the plaintiff does not differ materially from the testimony introduced in his behalf upon the other trial. It appears that Manheimer was driving along Union street towards the north. He was riding in a democrat wagon, drawn by a very slow and lazy mule. His son, a lad about ten years old, was riding with him. No train was due, and no evidence that one was expected by Manheimer. In fact the train was nearly two hours late, and there was evidence tending to show that it came rushing through at a rate of from 20 to 40 miles an hour, without sounding a whistle or ringing a bell at or before the street crossing. The view was more or less obstructed, as shown in the former opinion. Manheimer was going very slow, and, according to the testimony of his son, looked and listened for the train, but he did not stop before crossing.

One John Dodge, a farmer residing in the town of Adams, was passing up Union street at this time, in the same direction and behind Manheimer. He first saw the deceased about 8 or 10 rods south of the crossing. Dodge caught up with him, and let his team walk behind Manheimer's wagon. He testifies that the deceased was going very slow. Dodge heard no whistle or bell, or any intimation that a train was approaching. All at once the train flashed by and struck the mule Manheimer was driving.

Daniel Gillett, a witness for the defendant, testified that he drove across the track going south. He heard the whistle of the train, and it scared his horses and they started on a good jog. As he was trotting by Manheimer he hallooed to him twice, and told him a train was coming. Manheimer looked at him, and said nothing. On being asked if Manheimer understood what he said, he testified: "I did not think so afterwards, when I heard he was catched; thought he could not have understood me or that he did not pay any attention to it. I do not know whether he understood what I said. After I heard he had been killed, I supposed, of course, he could not have understood me, or he must have thought I was fooling him. His boy did not say anything. He was standing up in the wagon." "Of course, I could not watch him a great deal, as I had my own team to look after. I thought from the glance that I gave the boy that he reached over to stop him."

C.W. Dunton, also a witness for the defense, testified that he was coming south on Union street. Met Manheimer about half way from the crossing to Railroad street. (From the center of the railroad track at the crossing to the north line of Railroad street the distance is 208 1/2 feet.) Dunton is a law student, and was then about 16 years old. He was driving a double team and wagon. He had seen or heard the train coming, and went over the track on a brisk trot. His horses were on a gallop when he passed Manheimer. "It was a matter of custom with us in coming from the north side to warn persons crossing from the further side that the train was coming. That is the reason I spoke to him. I spoke to him, in effect, to whip up his mule." He could not tell whether Manheimer heard him or not.

It is claimed that the testimony of these two witnesses establishes, with other evidence, the fact that Manheimer, without the exercise of any care or caution, rushed blindly into the danger, and was grossly negligent. The court was also requested to instruct the jury that if they believed that Manheimer was told by Gillett that the train was coming, then the plaintiff could not recover. In accordance with the well-settled rule, we cannot take into consideration the testimony upon the part of the defendant in determining whether the plaintiff was entitled to go to the jury upon the case made by him. There was evidence tending to show that Manheimer looked and listened before crossing. The weight of that testimony and its truthfulness was for the jury, and not for the court. Besides, there is no proof that he heard what Gillett said or understood his remark. What Dunton said to him had no reference whatever to an approaching train. As the witness Gillett thought, it is not very probable that Manheimer understood from him that the train was coming, and yet drove upon the track as he did. The instruction was properly refused. It would not be sufficient that he was told the train was coming. It should also appear that he heard and understood what was said to him.

Dunton was permitted on cross-examination, against objection, to testify that he had often before this joked Manheimer about his rig and his mule. We can see no harm in the admission of this evidence, nor any reason why it was not competent. As the evidence shows that Manheimer was always whipping his mule, and was doing so when Dunton told him to "whip up his mule," it would seem that the fact of Dunton frequently joking him about the mule would have a pertinent bearing upon the question whether Manheimer understood the remark as indicating danger from an approaching train, or as a mere joke or pleasantry.

It is also urged that error was committed in allowing two witnesses, Williams and Campbell, to compare the speed of the train at the time of the accident with the speed of the same train on other days before the injury occurred. It was held by this court in Detroit & M.R. Co. v. Van Steinburg, 17 Mich. 99, that any intelligent man, who had been accustomed to observe moving objects, was competent to testify as to the rate of speed of a moving train. It was observed by Chief Justice CAMPBELL in Grand Rapids & I.R. Co. v. Huntley, 38 Mich. 540, that opinions on relative speed, without some standard of rapidity, are of no value by themselves. It is probable that in the present case the testimony of these witnesses was of little worth, but yet there was no error in receiving it, as it was competent as far as it went.

The other exceptions in the record are all directed against the charge of the court. It is alleged that the circuit judge committed error in refusing or modifying defendant's requests, and also in certain portions of the charge given upon the court's own motion. Upon a careful examination of the instructions, we find that many of the requests refused were substantially given in the main body of the charge. Those refused were:

First. That the plaintiff could not recover.

Second. "(13) In this case, if Manheimer's view of the railroad track to the east was obstructed by buildings or cars on the side track, or any intervening object or objects, so that he could not determine with certainty whether or not a train was approaching from the east without stopping, then it was his duty to stop, and, if necessary, to go ahead of his team on foot, and examine so as to determine with certainty. And if he went upon the track without taking such precautions he did so at his own peril, and your verdict must be for the defendant."

Third. "(14) It was not enough for Manheimer to merely turn his head, and look to the east, just before driving upon the track, but, as before explained to you, he was bound to stop, and make sure that there was no danger."

Fourth. (Defendant's nineteenth request.) "There is no law in this state regulating the speed of trains, and the company had the legal right that day to run that train at the rate of thirty miles an hour at that place."

Fifth. "(21) There is no law in this state requiring the company to sound the whistle for street crossings in the city of Hillsdale, unless required to do so by the common council of the city of Hillsdale; and there is no evidence in this case that at the time of this accident such whistles were required to be sounded; and so I charge you, as a matter of law, that at the time of this accident the company was under no legal duty or obligation to sound whistles for any of the crossings in the city of Hillsdale."

Sixth. "(22) The positive testimony of the witnesses who heard the train, and who heard the bell and whistle, is not contradicted by that of those who did not hear them. And such testimony establishes the fact that Manheimer could have heard the train if he had stopped and listened. Whether one does or does not hear, so that he can testify to a given sound, depends upon the degree of attention he...