McCullough v. Minneapolis, St. P. & S.S.M.R. Co.
| Decision Date | 26 June 1894 |
| Citation | 59 N.W. 618,101 Mich. 234 |
| Parties | MCCULLOUGH v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Schoolcraft county; Joseph H. Steere Judge.
Action by Margaret McCullough against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.
E. C. Chapin (A. H. Bright, of counsel), for appellant.
Carey & White, for appellee.
Defendant appeals from a judgment obtained at circuit for an injury sustained near defendant's railway, at its crossing of a highway. Plaintiff was riding in a cutter with her husband upon a highway that was nearly parallel with defendant's track for about three-fourths of a mile, varying in distance from the track from 35 to 200 feet. This highway finally crossed the track, near the place of the accident, at an angle of about 45 degrees. To the east of this crossing was a sharp curve around a hill which lay to the eastward of the highway, rendering it impossible to see the train approaching from the east, from any point upon the highway, until the line of the right of way was crossed. Plaintiff was approaching this crossing, and just at the line of the right of way the train came into view, distant some less than 300 feet from the crossing. The horse turned about, and ran away, upsetting the cutter, and injuring the plaintiff. The negligence relied on was a failure to give the statutory signals. The counsel for defendant contend that the court should have directed a verdict against the plaintiff, for two reasons: (1) Because the testimony conclusively showed that the signals were given. (2) Because the plaintiff and her husband did not stop and listen before reaching the point where the accident occurred.
Were we to pass upon the question of fact, we should say that the giving of the signals was established by a preponderance of the evidence, but we cannot say that there was no evidence to the contrary. Plaintiff and her husband both testify that they were listening,-the horse having been brought to a walk,-and that they heard none, and that it was a calm day. William Howard, who was on the train, testified positively that they were not given. In the light of this testimony, we think it plainly a question for the jury.
Should the judge have held that, under the facts shown, it was the duty of plaintiff's husband to stop and listen before getting so near the railway crossing that his horse might be frightened at the approach of the train? The husband testified that he waited two hours to make sure that the train had passed; that he inquired, and was told that it had and so believed. This testimony indicates that he did not like to meet the train upon the parallel road, though he testifies that he had done so without accident, and would not have expected an accident, had he done so. On the other hand, it shows some effort to avoid accident. It has been held in many cases that, before venturing upon a track where the view of an approaching train is cut off, the traveler should stop and listen, but we are cited to no case where the doctrine is applied when the driver is at a distance from the track, and the injury results from the fright of the horse. There is a difference between the risk attendant upon the upsetting of a vehicle and those involved in a railway collision. The latter always occurs if the traveler is on the track at the right time, and the results are so uniformly disastrous to those who venture as to leave no room for a difference of opinion about the propriety...
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