Keyser v. Chicago & G.T.R. Co.

• Decision Date: 06 May 1885
• Citation: 23 N.W. 311,56 Mich. 559
• Parties: KEYSER, by his next Friend, v. CHICAGO & G.T. RY. CO.
• Court: Michigan Supreme Court

23 N.W. 311

56 Mich. 559

KEYSER, by his next Friend, v. CHICAGO & G.T. RY. CO.

Supreme Court of Michigan

May 6, 1885

Error to St. Clair.

James L. Coe and Stevensons & Phillips, for plaintiff and appellant.

E.W Meddaugh, for defendant.

SHERWOOD, J.

The plaintiff in this case is an infant, and was about two years and six months old when he received the injuries complained of. On the twenty-ninth day of July, 1880, the defendant ran one of its passenger trains, composed of an engine and four cars, going east over its track through the township of Kimball, in the county of St. Clair. The plaintiff and his parents lived on section 10 in Kimball, and about 20 rods south of the railway, on a private way, which was then generally used, and which crossed the railroad. The company's track was unfenced, and the crossings not supplied with cattle-guards. The father and next friend of the plaintiff were at home but little, and worked at Port Huron. His family consisted of his wife and three children,--an infant, the plaintiff, and a young girl about five years old. On the day above named the mother went to the garden some distance from the house to get vegetables for the family's dinner, leaving the two younger children at the house in charge of the girl, and during her absence the plaintiff wandered away upon the defendant's track, to the distance of a half or three-quarters of a mile from the house, when the train came along, running at a speed of 30 or 45 miles per hour, and struck the plaintiff, threw him off the track into a log heap 20 or 30 feet distant, producing very serious and permanent injury to him. The train hands, not being able to ascertain where or to whom the child belonged took him on board the train and carried him to Port Huron. For the injuries thus received this suit was brought.

The negligence relied upon by plaintiff for a recovery against the defendant was--First, the company ran its train at too high rate of speed, and failed to keep proper lookout second, it failed to fence the road as required by statute third, it did not ring the bell or sound the whistle at the highway crossing. The defendant denied all negligence upon its part; denied that it was required to fence its road against the plaintiff; and claims the parents were guilty of contributory negligence in allowing so young a child as the plaintiff to go upon the defendant's track. Upon the testimony given, and under the charge of the court, a verdict was obtained by the defendant. After a careful review of the case and the rulings of the court, we do not think the judgment in this case can be sustained.

Upon the first point it appears that the country at the place and in the vicinity of where the accident occurred was somewhat low and wet, and grown up to brush and berry bushes, and though sparsely settled, was occasionally visited by persons in the vicinity, and others who gathered berries. There were two road crossings within three-quarters of a mile of where the plaintiff was struck by the train. The engineer of the train was sworn on behalf of defendant, and gave evidence tending to show that the train was running at the rate of 30 or 35 miles per hour; that, with the number of cars composing the train, it could not be stopped in a less distance than from four to five hundred feet; that when he first saw the plaintiff upon the track his engine was from 3,000 feet to 2,500 feet from him, and he resembled a stick of wood lying upon the track; that he was lying down; that when he first discovered that it was a child which he saw his engine was about 1,200 feet from the plaintiff.

The court charged the jury upon this point, among other things that "at the point where the accident occurred there was no house in the immediate vicinity of the track, but it was swampy, unoccupied land on either side of the road, and not a place frequented by children, nor mere infants of the tender age of this one might reasonably be expected to stroll upon the track; and there is nothing in evidence warranting the assumption that employes of the defendant were required to keep a vigilant lookout in this locality. *** The law does not require danger-signals to be given, except at public crossings or places frequented by persons, or where they may be expected to be, and no one, whether young or old, has a right to walk along the railroad track or use it as a highway, and if he does so, he must take the consequences of his acts. *** The only question that is left for you to consider and determine is whether the engineer and...