McDuffie v. Lake Shore & M.S.R. Co.

• Citation: 98 Mich. 356,57 N.W. 248
• Parties: McDUFFIE v. LAKE SHORE & M. S. RY. CO.
• Decision Date: 05 January 1894
• Court: Supreme Court of Michigan

57 N.W. 248

98 Mich. 356

McDUFFIE v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

January 5, 1894

Error to circuit court, Lenawee county; Victor H. Lane, Judge.

Action by Sanford McDuffie against the Lake Shore & Michigan Southern Railway Company. There was judgment for plaintiff and defendant brings error. Affirmed.

C. E. Weaver, (Geo. C. Greene and O. G Getzen-Danner, of counsel,) for appellant.

Watts Bean & Smith, for appellee.

LONG J.

Plaintiff recovered judgment on the trial in the court below for injuries which he claims to have received by reason of defendant's negligence. The record shows that on December 28, 1891, in driving across the railroad track of defendant with a double team attached to a lumber wagon, he was struck by an engine, causing the injury complained of. The negligence alleged in the declaration is that defendant was running a wild engine over its road at a dangerous and reckless rate of speed, and passed this crossing without giving the signals required by the statute; that cars were left standing on a side track, with an engine attached; and that these cars, and the smoke and steam issuing from the engine attached thereto, obstructed plaintiff's view, in making the crossing. Defendant's counsel contends that there was no evidence worthy of consideration showing that the bell was not rung or whistle sounded, and that therefore, the court was in error in submitting that question to the jury. We think the record contains abundant evidence to go to the jury upon that question. While the train hands, and some others, testified that these signals were given, yet the plaintiff, upon his part, introduced witnesses who testified that they were giving attention to the approach of the engine, and, some of them say, "listening for the whistle," yet no whistle was sounded or bell rung. This testimony is not negative in its character, but is positive and certain, and, if believed by the jury, warranted them in finding that the signals were not given.

The second point of contention is that the plaintiff was negligent in crossing. The highway in question extends north and south through the village of Clayton crossing the railroad track at right angles. On the day of the injury, the plaintiff had brought to the village a load of wood upon his wagon, unloaded it, and started to return home. Upon the wagon, which was a low one, was a wood rack. He was standing and driving slowly southward. About 50 feet north of the track, and upon the west side of this highway, was a store building. After passing that building, and when about 12 feet from the track, plaintiff testified that he stopped his team, and looked up and down the track, and listened; that the engine on the side track was blowing off steam, and the smoke out of it covered the ground so that his view was obstructed to some extent, not only by the train standing there, but by this smoke and steam; that, seeing or hearing no train, he started forward again, and his wagon was passing over the track when it was struck by the engine, and he was seriously injured. Upon this point the court instructed the jury, substantially,...