Guggenheim v. Lake Shore & M.S. Ry. Co.
| Decision Date | 29 September 1885 |
| Citation | 24 N.W. 827,57 Mich. 488 |
| Parties | GUGGENHEIM v. LAKE SHORE & M.S. RY. CO. |
| Court | Michigan Supreme Court |
Error to Hillsdale.
E.L Koon, for appellant.
Millard Weaver & Weaver, Ashley Pond, and O.G. Getzen-Danner, for defendant.
Union street, in the city of Hillsdale, runs north and south, and has been used over 40 years, being one of the principal streets of the city. The defendant's railway track, in passing through the city, crosses this street nearly at right angles, running east and west. The crossing is alleged to be a dangerous one, by reason of the near approach of buildings to the track on each side of the street. On the east side of the street and on the south side of the track, standing partly on defendant's right of way and within eight feet of the track and running parallel with it, was a wood-shed five or six rods in length. There was a side track south of the main track, extending from the depot west to Union street and about 30 rods beyond, upon which there were standing at the time of the accident complained of five box cars, and still east of these cars and shed were the coal-sheds of the company. Several buildings also stood on the east side of Union street and south of the wood-sheds of the company; and between Main street and the depot, a distance of about 40 or 50 rods, were several lumber yards, closely approaching the track and more or less obstructing the view of the approach of passing trains coming from the east. Union street, also, from about 30 feet south of the track, was about three feet lower than the railway track, which ran westward through the city on a down grade to the depot.
This was the situation of the crossing and its surroundings on the thirty-first day of October, 1879, when Isaac Manheimer accompanied by his son, a lad about 10 years old, attempted with a mule and a democrat wagon to make the crossing from the south on Union street, and while on the track was struck by one of the defendant's passenger trains coming from the east, and instantly killed. The plaintiff is administrator of Manheimer's estate, and as such brings this suit under the statute to recover damages for the alleged negligent killing of the deceased. The cause was tried by jury before Judge PEALER at the Hillsdale circuit, and after hearing the proofs he directed a verdict for the defendant, on the ground that Manheimer was negligent in not observing proper caution in approaching the crossing and track of defendant.
The return to the writ furnishes us with all the evidence and proceedings in the case for review. The direction of the court to the jury raises the important question in the case. If he was right, the other questions presented may well be passed until circumstances shall arise making their consideration necessary.
In determining the question presented by the ruling of the court, it is only important to examine the testimony on the part of the plaintiff, and that which tends to prove his case. There is no question but that the proof shows Manheimer was instantly killed by the defendant's engine at the time and place mentioned in the plaintiff's declaration. Neither is it pretended that the deceased had not the right to cross the track of defendant with the mule and wagon when he made the attempt so to do.
The plaintiff claims four grounds of negligence on the part of the company to prove his case, and that he gave testimony on the trial tending to establish them all. First, the defendant left its cars standing upon the side track in such manner as to obstruct the view of an approaching train from the east by a traveler upon the highway, and provided no watchman or other means of warning persons of such additional danger. Second, that the train causing the injury to deceased was not running on time when the injury occurred, and came into the city upon the crossing at an extraordinary and dangerous rate of speed, running 35 or 30 miles an hour. Third, that no whistle was sounded or bell rung as required by statute, or other warning of the approach of the train. Fourth, that the crossing was a dangerous one, and that defendant should have furnished the same with a flagman to warn persons of the danger, and of the approach of passing trains.
The testimony shows, I think, very clearly that the near proximity of the freight cars to the highway greatly obstructed the view of approaching trains from the east, and thereby very much increased the danger in approaching the track upon the highway from the south. While this was the right of the defendant, it must be conceded, I think, that it imposed additional responsibility upon the defendant in adopting means of protection against accidents and danger. The plaintiff's testimony, however, shows no such means were taken, and the usual and ordinary warnings were omitted; at least it strongly tends to show that such was the fact.
The plaintiff's testimony upon the second ground tends to show that the train passed through the city, and over the Union street crossing, at the rate of 25 to 40 miles an hour, and one of defendant's witnesses, an engineer and employe of the company, testified that the crossing was a dangerous one, and that the engineer would not exercise ordinary care and prudence in running the train over that crossing at a rate of more than 15 miles an hour.
Upon the third ground the plaintiff's witnesses, to the...
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