Niemann v. Michigan Cent. R. Co.

• Decision Date: 11 April 1890
• Citation: 44 N.W. 1049,80 Mich. 197
• Court: Michigan Supreme Court
• Parties: NIEMANN v. MICHIGAN CENT. R. CO.

44 N.W. 1049

80 Mich. 197

NIEMANN v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

April 11, 1890

Error to circuit court, Saginaw county; C. H. GAGE, Judge.

Hanchett, Stark & Hanchett, for appellant.

Trask & Smith, for appellee.

LONG J.

Plaintiff's cow was killed by one of the defendant's freight trains while passing through the village of Zilwaukie, Saginaw county. The plaintiff resides west of the defendant's railroad track, and on March 20 1888, drove six of his cows across the track, and let them go from there to the river to drink. On their return the last cow to pass over the track was killed by the passing freight train. The negligence claimed is- First, that the defendant's road was not fenced; and, second that the train was run at a greater speed than the rules of the road permit, and faster than is safe through the streets of the village, and not giving the signals required by law. Plaintiff had judgment on a trial before a jury in the Saginaw circuit court, and defendant brings error.

The only error assigned is that the court was in error in submitting the questions raised on the trial to the jury. After the close of the testimony, defendant's counsel asked the court to instruct the jury that, inasmuch as the undisputed evidence of the plaintiff showed that at the time the plaintiff's cows were wandering about in the vicinity of the railroad crossing, and at the time of the accident he was giving no attention or care to his cattle, he was guilty of contributory negligence, and could not recover. The court refused this instruction, but left not only the question of defendant's negligence in running its train at great rate of speed, and without proper signals, but also the question of the plaintiff's contributory negligence, as questions of fact, to the jury. It is contended here that, under the undisputed evidence in the case, there was nothing to go to the jury upon the question of the plaintiff's contributory negligence. It appears from the plaintiff's own testimony that he drove his cows on that day across the track of the railroad, and let them go to the river to drink. He saw the cows coming back from the river thought they were all right, and paid no further attention to them. He stood talking with a friend, heard the train pass, and a few moments afterwards was told that one of the cows was killed. He was then three blocks away from where the cow was killed, and the...