Malmsten v. Marquette, H. & O.R. Co.
| Decision Date | 04 October 1882 |
| Citation | 49 Mich. 94,13 N.W. 373 |
| Parties | MALMSTEN v. M., H. & O.R. Co. |
| Court | Michigan Supreme Court |
The rule which makes a traveler on a public highway guilty of contributory negligence if he does not exercise a certain degree of care, caution and judgment before crossing a railway track, was held inapplicable in a case where a woman who had just been landed from a steam-boat upon a long pier on which there were about 200 persons, was run over by a train of freight cars, loaded with iron and running down a heavy grade upon the wharf, without any locomotive. Held moreover, that the facts were sufficient to show gross negligence in the railway company, and that the negligence of the steam-boat company, if any, did not relieve it from responsibility.
A passenger who has just landed from a steam-boat is not so identified with the steam-boat company as to make the company solely liable for an injury suffered by the passenger from another quarter immediately afterwards.
Error to Marquette.
F.O. Clark and Geo. W. Hayden, for plaintiff.
W.P. Healy, for defend. ant and appellant.
The following short statement of this case and of the principal questions raised is taken from the brief of counsel for the defendant and appellant.
It is an action brought by the husband as administrator, to recover the pecuniary damages resulting from the alleged negligent killing of his wife by a train of cars of the defendant. The plaintiff, a native of Sweden, emigrated to this country a year before the accident. He left his wife and two children behind. At the time the wife was killed she was on the way with her children to meet her husband, having traveled alone from Sweden to Marquette. She was landed by the steam-boat company at the merchandise wharf or pier of defendant about 7 o'clock A.M., August 18, 1881. She removed her baggage from the boat onto the wharf without any aid except from her daughter, a young woman 16 years of age. There was a warehouse 200 feet long with a railroad track on each side of this wharf, and trains of cars were continually coming and going from the wharf with freight. After deceased had been on the wharf a few minutes a train of cars came down at a speed estimated from 10 to 15 miies an hour on the grade, and about 8 miles on the wharf. She attempted to cross the track when the cars were very near and was killed while so doing.
The questions raised in the case are numerous. The principal questions, however, going to the plaintiff's right to recover at all, are three in number, as follows: (1) That the deceased, by her own negligence, contributed to her death (2) the negligence alleged against the defendant was not proved; (3) the deceased was sufficiently identified with the steam-boat company so as to take this case out of the rule laid down by this court in Cuddy v. Horn, 46 Mich 596, [S.C. 10 N.W. 32,] and make the steam-boat company solely liable. Other questions in regard to rulings on the trial will be noticed further on.
We shall make no attempt to review the evidence in this case...
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