Jebb v. Chicago & G.T. Ry. Co.

• Decision Date: 13 October 1887
• Parties: JEBB v. CHICAGO & G.T. RY. CO.
• Court: Michigan Supreme Court

34 N.W. 538

67 Mich. 160

JEBB v. CHICAGO & G.T. RY. CO.

Supreme Court of Michigan

October 13, 1887

Error to circuit court, Kalamazoo county.

Action against a railroad company to recover damages for a cow and hog killed on defendant's right of way by reason of its failure to keep its fences in proper repair. The declaration inter alia, alleged that defendant ran its cars against and upon "the domestic animals of plaintiff, to-wit, one cow and one sow, and wounded and killed said domestic animals to-wit, one cow and one sow," etc. The testimony at the trial was to the effect that a cow and a shoat or pig about three months old got upon defendant's right of way through a defect in its fence, and were killed. The main facts are sufficiently set out in the opinion.

Edwards & Stewart, for defendant, appellant.

George M. Buck, (E.W. Meddaugh, of counsel), for appellee.

SHERWOOD, J.

The plaintiff in this case owns 40 acres of land lying in the township of Climax, in the county of Kalamazoo. The defendant's railway runs diagonally across the north-west corner of the lot, leaving in the corner, cut off, a triangular piece of ground containing about three acres which the plaintiff used during the season of 1884 for pasture. On the last of May and during the month of June the plaintiff owned a cow and some hogs, which were pastured in this corner lot. The cow and one of the plaintiff's hogs were run over by defendant's cars, and killed. The plaintiff claims that by reason of the neglect of the defendant to fence its road, and keep it in repair, where it crossed her land, as required by law, her cow and hog passed from her pasture field into the defendant's right of way and upon the track, where they were killed by the passing trains. The cause was tried before a jury in the Kalamazoo circuit, and the plaintiff recovered a judgment of $78.63. The defendant brings error.

This cause was originally commenced in justice's court. The plaintiff stated her case in three counts in the declaration, and thereupon counsel for the defendant moved the court to dismiss the suit, on the ground that it had no jurisdiction in the case, for the reason that the plaintiff at the time the suit was commenced resided in the township of Climax, and that the justice before whom the suit was brought resided in the city of Kalamazoo, which lies entirely within the territorial limits of the township of Kalamazoo, and the defendant's road only passing through a township which corners with the township of Kalamazoo, but neither adjoins nor corners with the city. The justice overruled the motion. The defendant then pleaded the general issue, and the cause was tried on the appeal to the circuit. Counsel for defendant, when the plaintiff offered her proofs, objected to the same, claiming that the court had no jurisdiction in the case, for the same reason urged before the justice, and was again overruled. This ruling is now alleged as the defendant's first ground of error. We think the ruling was correct. Section 6818, How.St., provides that suit may be brought "before some justice of a city in the same county, formed from a township or townships next adjoining the residence of the plaintiff or defendant, or one of the plaintiffs or defendants." And by Act No. 118, Laws 1885, it is further provided that the action may be brought before a justice of a city lying in a township which adjoins the township where the plaintiff or defendant, or either of them, reside. Laws 1885, p. 120. It is conceded by the record that the defendant was a resident of the township of Pavilion, for the purpose of this suit, and Pavilion corners with the township of Kalamazoo, and this would be sufficient to enable the justice before whom the suit was commenced to take jurisdiction. How.St. �� 6861, 8147; Holmes v. Carley, 31 N.Y. 289; Burson v. Huntington, 21 Mich. 415. We find nothing in the charter of the city of Kalamazoo interfering with the statute of 1885, herein referred to. It was undoubtedly intended to apply to such cases as the present.

The plaintiff relied upon the insufficiency of the defendant's fence on the north side of its right of way adjoining her pasture lot where it is alleged her stock came upon the defendant's road, as one of the grounds of defendant's negligence. She also claimed that the insufficiency of said fence had existed a long time before her property was killed, and that she gave notice to the company early of its defective condition. It does not appear from the testimony that any one saw the animals killed go upon the defendant's right of way at the time they were injured; and the plaintiff, after proving the condition of the defendant's fence, was allowed to show by several witnesses that others of the plaintiff's stock, such as her hogs and sheep, had on several occasions, months before, been seen on the defendant's right of way. Counsel for defendant objected to all testimony relating to other animals than those killed going upon the defendant's right of way. The court overruled the objection, and allowed considerable testimony of this character to come in. The objection should have been sustained. It was certainly immaterial to show what the plaintiff's other stock did, and especially at other times than when the animals mentioned in the declaration were killed.

We have examined the declaration and proofs claimed to be a variance which were admitted by the court, and cannot agree with the learned counsel for the defendant upon the subject in this case. We think the declaration was sufficiently specific to admit the proofs which were proper to be received. We find no other objections to the testimony needing further...