Marcott v. Marquette, H. & O.R. Co.

• Decision Date: 12 October 1881
• Citation: 10 N.W. 53,47 Mich. 1
• Parties: MARCOTT v. MARQ., HOUGHT. & ONT. R. CO.
• Court: Michigan Supreme Court

10 N.W. 53

47 Mich. 1

MARCOTT v. MARQ., HOUGHT. & ONT. R. CO.

Supreme Court of Michigan

October 12, 1881

Rulings cannot be made on error, on questions of fact, or on questions of law that have not been decided against the plaintiff in error, and if such rulings were made, they could not bind the action of the jury on a new trial.

Negligence in injuries inflicted by railroad trains upon individuals is a question that depends upon the circumstances and can rarely, if ever, be absolutely defined as matter of law; and in determining whether there has been negligence all the circumstances must be considered together.

The care required of all persons doing business involving danger must be such as is reasonably calculated to avoid serious consequences therefrom, so that if there are such consequences they may be considered as accidental only.

In an action for negligent injury negligence which did not contribute to the injury need not be regarded.

A case cannot be taken from the jury unless it is plain upon the strongest showing made by any of the witnesses, that there is no cause of action.

A case must be absolutely free from conflict before it can be taken from the jury.

Courts cannot assume that witnesses whom they most credit will be followed by the jury, and no matter how dissatisfied a court may be with the conclusions of the jury, it cannot usurp their functions.

The lookout upon a locomotive must be as efficient as the circumstances require, and especially so when the chances of access to the track are greater than usual.

It is a question for the jury whether a special train can be run without negligence at such a speed as to make it difficult to check its speed within a reasonable time and distance.

A railroad train ran over a child on the track. It appeared that there were visitors in the cab of the engine, and that the presence of strangers without leave was prohibited by rule. Held, that it was proper for the jury to consider the fact with other circumstances as bearing on the question of negligence.

The statutory regulations concerning the fencing of railways apply north of Saginaw river except that the statutory penalty for neglecting to build them is not in force. Act 98 of 1875.

Error to Marquette circuit.

F.O. Clark, for plaintiff in error.

W.P Healy, for defendant in error.

CAMPBELL, J.

Plaintiff in error sued defendants for the death of his child, a little boy of two and a half years old, who was killed by an irregular train consisting of a locomotive and a single car of invited guests on an excursion from Marquette down the line. The train had just passed by Champion station, and the boy was killed at a point 1,000 feet west of it, between 10 and 11 o'clock of the morning of September 20, 1877.

It appears that the child and a brother not more than two years older were walking on the track westward, and nearly opposite plaintiff's house, when the older boy was in some manner startled by the approach of the train and tried to get the little brother off, but the latter fell and he could not. It appears further that a neighbor named La Coss who lived across the track a little westward from plaintiff was sitting on his steps at work, with his back to the road, when his wife called to him that the children were on the track, and he rushed at once and signalled the train by throwing up his arms, and ran to save the children. The oldest was off and he had reached within five feet of the place, when the train struck the youngest and fatally injured him in the head. It is not shown by the record--which does not set out all the testimony--whether the train passed over him. The whistle to put on brakes was blown, as La Coss testifies, about 215 feet from the place of the injury. The train ran 900 feet further before it stopped. The distance traversed by La Coss was 175 feet. He testifies that when he first started and saw the children the train was on the switch west of the depot. The testimony is that the place of injury was 1,800 feet from the depot, and that the switch enters the main track between 600 and 700 feet from the depot, or between 1,100 or 1,200 feet from the place of the injury.

No one in the train appears to have known what had occurred, until it reached a station several miles further off, to which the news was transmitted. The engineer and fireman did not, so far as appears, or is claimed, see the children or either of them, and no inquiry was made at the time into the cause of the stoppage. The track was level and objects on it could be seen, according to the testimony from a quarter of a mile east of the depot, or something over half a mile eastward from the place of the injury, and for about the same distance westward. The track was not fenced. Several houses were scattered along the road between the depot and plaintiff, who occupied the most westerly of them all, and who at the time of the injury was at work on the road about a mile west of his house, as section foreman of the road. The action being based on the negligence of the defendant's servants, in not using such care as was incumbent on them under the circumstances, the facts set out calling for care and the failure to use it were in brief the unfenced road, the omission to give signals the excessive speed of the train, the lack of adequate means of stoppage the failure to keep such a lookout as should have been kept, and the existence of special hindrances to a vigilant lookout in the presence of strangers in the cab of the locomotive, whose being there tended to interfere with the view and to distract the attention of the engineer and fireman.

The circuit judge, while himself of opinion that there was evidence for the jury on several matters of importance, took the case away from them, and directed a verdict for the defendants, and did this on the ground that this court had on a previous hearing on error declared there was no negligence apparent from the record as there made up, and that if there was none in those respects, the evidence of the presence of the visitors was not by itself sufficient to show a cause of action. Before considering the questions presented by the present record, it is necessary to refer a moment to the misapprehension of the circuit judge concerning the action of this court, in the case of the Marquette Houghton & Ontonagon R. Co. v. Marcott, 41 Mich. ----. In that case the judgment was reversed because it was given to the jury on a theory not set up in the declaration. It was not held that there was not sufficient evidence to go to the jury on other points, but on the contrary attention was called to the fact that ...