Lincoln v. Detroit & M. Ry. Co.

• Decision Date: 26 March 1914
• Parties: LINCOLN v. DETROIT & M. RY. CO.
• Court: Michigan Supreme Court

179 Mich. 189
146 N.W. 405

LINCOLN
v.
DETROIT & M. RY. CO.

Supreme Court of Michigan.

March 26, 1914.

Error to Circuit Court, Arenac County; Nelson Sharpe, Judge.

Action by Lansing E. Lincoln, administrator, against the Detroit & Mackinac Railway Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

Argued before McALVAY, C. J., and MOORE, BROOKE, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ.

[146 N.W. 406]

William C. Cook, of Detroit, and Tom Bechraft, of Omer, for appellant.

Henry, Henry & Henry, of Alpena (James McNamara, of Detroit, of counsel), for appellee.

STONE, J.

The defendant owns and operates a railway system running from Pinconning, Bay county, to Linwood in said county, and elsewhere. It owns, in connection with its railway system, a pleasure resort located along its right of way at its station at Linwood, which resort is contiguous to the waters of Saginaw Bay. In connection with this summer resort, it operates and controls certain amusement features, to wit, stands, bathing, boating, and other devices for the amusement of the public, for profit.

On June 17, 1912, plaintiff's intestate, a boy 16 years of age, was a passenger for hire on excursion rates from his home in Pinconning to said summer resort, to attend a school children's picnic thereat. Upon his arrival at said resort he secured a ticket from the defendant's ticket agent for the use of one of defendant's rowboats. He presented the ticket to another agent of defendant who had the boats in charge, and obtained a certain boat known as ‘D. & M. Ry. Co. No. 22’ from the boat tender, which was a 14-foot steel rowboat. The boat was obtained by plaintiff's decedent for the purpose of taking a row on the waters of the bay, in company with three companions of about the same age. Soon after leaving the landing the children were lost sight of, and it was afterwards discovered that they had been drowned. The action was brought under what is termed the ‘death act’ to recover the pecuniary damages which it is claimed the father and mother have sustained by the death.

The declaration, after averring the duty of the defendant, alleges that it failed to provide plaintiff's intestate and his three companions a reasonably safe and seaworthy boat; that it failed to provide for a careful and prudent inspection of said boat as to its repair before leasing the same as aforesaid; that it failed to maintain the ends, side, and bottom of said boat free from holes and leaks so that water could not enter to the inside of said boat when in use by plaintiff's intestate and his companions for rowing purposes upon said water; that it failed to maintain the strip of wood around the inner side of said boat, to which were attached the prow and stern seats, to which seats were attached the air bulkheads or tanks, free from rot and other defects, etc., and alleging that it failed in some six other particulars, including that of permitting said boat to be overloaded, and that said boat was a two passenger boat, etc.

The trial court having directed a verdict for the defendant upon the opening statement of plaintiff's counsel, without receiving any evidence, it becomes necessary to refer to such statement. In such statement plaintiff's counsel stated, in substance, that he would show upon the trial that the strip which went around the inner side of the boat, to which was attached the seats, was of wood; that at the time the defendant's agent permitted decedent to get into the boat to go upon the water for a boat ride, he permitted decedent to load into what was really a two passenger boat four people, although decedent asked for a larger boat, but was told that the boat was large enough; that this was the first day of the year that the rowboats were placed for the use of the public; that they had not been inspected to determine whether or not they were in a seaworthy condition, and safe repair; that decedent and his companions left the dock at said resort between 11 and 12 o'clock a. m., and that a watch found in the pocket of one of the decedents had stopped between 12 and 1 p. m.; that when last seen the boat and party were about three-quarters of a mile out from shore; that at the time the boat left the dock in charge of said party, it was in bad condition, and water was entering into the boat through seams in the rusting metal, it being an old boat, and had not been repainted or overhauled; that there were lying upon the beach and at hand larger boats of sufficient capacity to carry four and six passengers; that the hull of the boat furnished by defendant to decedent was constructed of steel; that the boat was not found, but that there were found floating on the surface, supported by the rear seat, the stern bulkhead and the boat mark, ‘Boat No. 22 D. & M.’; that the bulkhead under the seat was an oblong can, which should have been airtight; that around the edge of this seat, when it was found, there were several screw nails still sticking through the wood of the seat board; that on the ends of these

[146 N.W. 407]

screw nails were particles of decomposed rotten wood still adhering, the screw nails having pulled loose from the boat; that the air tank, which should have been nonsinkable, was full of water, and only floated by reason of the board's buoyancy; that although the inspector was there he had received from defendant no orders to inspect said boat; that it had been the custom of defendant in prior years to furnish a beach patrol with a field glass, but that no patrol was provided by defendant at this time; that the bay or water adjacent to this resort was very dangerous, and subject to sudden wind squalls-all of which was known to defendant, but not to decedent, and that defendant paid no attention to the safety of the plaintiff's decedent and his companions. Damages were claimed under sections 6308 and 6309, Compiled Laws, relating to railroad companies, and sections 10427 and 10428, Compiled Laws.

It was the claim of the defendant that by a proper construction of the statutes, above cited, there could be no recovery in the case, because if death had not ensued, the ‘party injured,’ Ion Lincoln, could not have sued the defendant for the recovery of his earning power, for that belonged to his parents, and also for the further reason that the cause of death was wholly conjectural.

The trial court, after a lengthy argument by counsel, but without stating any reasons therefor, directed a verdict and judgment for the defendant. The plaintiff has brought the case here by writ of error, and by proper assignments of error he claims: (1) That under the statutes above cited, the plaintiff may maintain an action for the drowning of his intestate, who was a minor 16 years of age, occasioned by the wrongful act, neglect, and default of defendant, in having furnished plaintiff's intestate with an unsafe and unseaworthy boat; (2) that death by drowning is an instantaneous death: (3) that the measure of damages would be the amount found by the jury that they should deem fair and just with reference to the pecuniary injury resulting from such death, to the persons who may be entitled to such damages when recovered, to wit, the earning power of decedent from the time of his death until he became 21 years of age, less what it would cost for his maintenance, under the rule as stated in Black v. Mich. C. Ry. Co., 146 Mich. 568, 109 N. W. 1052; (4) that damages recoverable under the statutes cited are held to be assets of decedent's estate, and should be so considered, even before recovery had thereunder; (5) that the case as stated by counsel did not leave the cause of death conjectural.

We quote the following from the brief of defendant and appellee: ‘In the statements made by plaintiff's counsel in the circuit court and in his brief filed in this court, the following admissions are made, which to some extent limit the scope of discussion on the questions of law. (1) That plaintiff's decedent, Ion Lincoln, was a minor, 16 years of age at the time of his death; (2) that plaintiff's decedent came to his death on the 17th day of June, 1912, by drowning; that no one was a witness to the occasion...