Hughes v. Detroit, G.H. & M. Ry. Co.

• Citation: 65 Mich. 10,31 N.W. 603
• Parties: HUGHES, by His Next Friend, v. DETROIT, G.H. & M. RY. CO.
• Decision Date: 10 February 1887
• Court: Michigan Supreme Court

31 N.W. 603

65 Mich. 10

HUGHES, by His Next Friend, v. DETROIT, G.H. & M. RY. CO.

Supreme Court of Michigan

February 10, 1887

Error to superior court of Detroit.

Action against a railroad company to recover for personal injuries. Judgment for plaintiff. Defendant appeals.

MORSE J., dissenting.

Seth E. Engle, for plaintiff.

E.W Meddaugh, for defendant and appellant.

CAMPBELL C.J.

Plaintiff a little colored boy, who is now between six and seven years old, and was, when injured, five years old or under recovered judgment in the superior court of Detroit for personal injuries causing the loss of a leg and some other damage. In July, 1884, towards the close of the day, but during daylight, according to the claim of his declaration, he was on the front of a switching locomotive which was making up and distributing freight trains, and standing upon a plank step used for switchmen and brakemen to stand upon in their yard-work, and, as he asserts, was thrown off by a sudden start or a sudden stop, and run over. The negligence alleged was the failure of the train-men to put him off before moving, and the rapid action in starting and stopping. Other facts were set up concerning the condition of the yard in which the accident happened, which ran from Hastings street across a block, and the use of it as a place of pastime by children, and some similar matters, all of which, although gone into on the trial, were finally ruled to be improper by the judge in his charge. This final ruling was in accordance with the decision of this court in Chicago & N.W.R. Co. v. Smith, 46 Mich. 504, 9 N.W. 830,

concerning such premises, where it was held, in a very similar case in all its circumstances, that the company could not be held, under such circumstances, for anything less than wanton and gross negligence involving reckless misconduct.

Under the charge, as already given, the jury were directed not to find for plaintiff unless the engineer actually saw the plaintiff on the foot-board. If so, the court held he should not have started the train while the boy was on it, but should have ordered him off; and, in giving this charge, the court said it was conceded that the boy was on the foot-board, and assumed the boy said the engineer saw him before starting. It was not disputed, but admitted on the argument in this court, that, if the engineer actually saw the boy on the foot-board before moving, he would be bound to use efficient care to prevent injury to him; but it is denied that he was on the foot-board, or, if so, was seen by the engineer, or any one else, in that position. The fact that the boy himself is the only witness who says the engineer saw him renders another question important, which is how far his testimony was admissible.

Upon examining the testimony, we find that, while there are witnesses for plaintiff who swear to his being on the foot-board, they do not agree as to the circumstances or cause of his being thrown from the board. On the part of the defense there is testimony which is not consistent with his being there, as well as positive testimony that he was not seen if there. The declaration does not aver that he was seen, but merely that he might have been seen with proper diligence, but it does aver he was on the board and thrown off. There was conflicting testimony as to the likelihood or possibility of seeing him on the board. He himself says he ran back and forth over it while the engine was not moving, and finally got on it just before starting, and then stayed on till he fell off. He also says he faced the engine, while the other testimony would not so indicate. All of this shows the great importance of this particular fact, and the danger of assuming it when the testimony conflicted. So it was equally important to know whether, if seen at all, he was seen before starting, as the duty to keep off a child entirely could not be quite the same as the duty which would arise from seeing him already on a moving train. Most of the testimony indicates that there was nothing unusual in the running or stopping of the train after it started. This theory was not laid before the jury so as to call their attention to its significance.

The boy's own testimony as to how he fell off is not quite the same in the direct as on the cross-examination. On the direct, the impression he gives is that he was thrown off by a sudden starting and jerk. On the cross-examination he says he was carried forward, and in no other direction, with the engine, until near the switch, and then fell off close by the switch. Rosa Bushey, one of his witnesses, on the other hand, says the engine went back with him towards Hastings street before taking him east to the switch. Tean, another of his witnesses, swore his back was towards the engineer while he was standing on the board, and that his hands were under the hand-rail. The testimony was by no means uniform upon the important matters on which this charge bore.

The charge seemed to go upon the idea that the plaintiff's account was the one to be chiefly acted on by the jury, in connection with his testimony concerning the engineer, and there was no other testimony which covered that matter directly. He does not swear positively that the engineer saw him, but his testimony undoubtedly tends that way, but, when all compared, leaves the time and circumstances of such seeing in doubt. Without it, as the court substantially charged, there was no case for the jury. In connection with this there was testimony of the plaintiff himself that the engineer, when he saw him, told the fireman not to ring the bell until the little fellow got off, and there is no testimony that after this warning the boy showed himself, if he did at all, to the engineer. The court committed error in treating controverted facts as undisputed, as well as in saying the plaintiff should recover if the engineer saw him, without reference to the time and circumstances of seeing him.

Passing by minor points, this makes it necessary to determine concerning the admissibility of this proof. It has been held by this court, as well as courts generally, that the fact that a child is under seven years does not create an absolute disability to testify. This was held in McGuire v. People, 44 Mich. 286, 6 N.W. 669, and is the doctrine of the text-books. But the authorities all agree that a child cannot testify unless capable of appreciating the obligation of his oath, if he takes an oath, or of his affirmation if that is substituted. And this is upon the ground that a witness must be under some pressure, arising out of the solemnity of the occasion, beyond the ordinary obligation of truth-telling. 1 Greenl.Ev. � 367; 1 Phil. c. 2, (C. & H.) and notes. One or the other of these methods of attestation is required of all witnesses, children or adults, and persons unsworn cannot testify unless they prefer the other form, which in this state is under the pains and penalties of perjury.

The fact that the child was to be put under oath or affirmation was not brought to his attention at all, so as to show whether he did or did not understand the bearing or effect of it. He merely said he must tell the truth or he would go to hell; but, when asked about any other consequences, he showed entire ignorance, and only said that his mother told him the day before that he would go to hell if he did not speak the truth. This is all that he said bearing on his veracity. He was examined by counsel, and not particularly tested by the court, and the court, without making any personal examination, certifying or in any way giving an opinion that the boy understood the nature or obligation of an oath or affirmation, left it all to the jury, to be tested by the ordinary questioning and cross-questioning by counsel. This is what might, no doubt, be safe with many other persons besides children who usually tell the truth, and may have their truth substantially tested, whether sworn or not. But the law entitles parties to insist that all witnesses shall be put under some solemn obligation before testifying, and excludes witnesses who are incapable of understanding its sanction. As Mr. Starkie very well explains it, this is not done because the law imputes guilt or blame to those who do not appreciate it, but because it requires the highest...