O'Neil v. Duluth, S.S. & A.R. Co.

• Decision Date: 10 July 1894
• Parties: O'NEIL v. DULUTH, S. S. & A. RY. CO.
• Court: Michigan Supreme Court

59 N.W. 836

101 Mich. 437

O'NEIL v. DULUTH, S. S. & A. RY. CO.

Supreme Court of Michigan

July 10, 1894

Error to circuit court, Schoolcraft county; Joseph H. Steere Judge.

Action by John R. O'Neil against the Duluth, South Shore &amp Atlantic Railway Company for damages for personal injuries. Demurrer to declaration sustained. Plaintiff brings error. Affirmed.

Henry A. Chaney, for appellant.

J. W McMahon (A. B. Eldredge, of counsel), for appellee.

HOOKER J.

The defendant has a depot separated from a part of the business portion of the village of Seney by its tracks. Seney is a village of but a few hundred inhabitants, in the county of Schoolcraft,-a county which is but sparsely inhabited. The action is brought by plaintiff, who attempted to cross the tracks of defendant, and, stumbling over one rail, fell, and was injured upon another. He bases his claim for damages upon the alleged duty upon the part of defendant to lay plank between and by the sides of the rails of its tracks. The cause is here upon demurrer, and the only question is whether the declaration states a cause of action. It states that defendant possessed and controlled a public railroad station and at said station the main and side tracks in question "across which said side tracks and main track at the point where said plaintiff was injured, *** all persons lawfully being at said station, and having occasion to go thence to the principal business portion of the village of Seney, or therefrom to said station, were used and accustomed, and were authorized by the defendant, to pass and repass." It then alleges the duty of planking between and alongside of the rails, and the negligent omission thereof. It states further that on the evening of December 17, 1891, the plaintiff was expecting to receive a letter or letters which he supposed had been directed to him at Marquette, and for which he had telegraphed a request that they be sent to him at Seney by the conductor of a train upon said railroad, to receive which letter or letters the defendant had authorized plaintiff to go and pass and repass across, over, and upon its said tracks at the point aforesaid, to wit, opposite and in front of a certain drug store kept by one Scott, the same being a regular, usual, and accustomed way for him to go and pass and repass for this purpose, of which fact defendant had notice, and whereas said plaintiff was intending, in case he received no letters, to go to the telegraph office, which was in the station or depot building of said defendant, for which purpose, likewise, said defendant had as aforesaid authorized him to cross said tracks at said point, there being no regular and accustomed place for crossing for such purposes. The plaintiff, while on his way aforesaid to the train at said station, and, in case he received no letters, then to said telegraph office, "and while lawfully upon the premises of said defendant, with its...