Post v. U.S. Express Co.
| Decision Date | 18 October 1889 |
| Citation | 76 Mich. 574,43 N.W. 636 |
| Court | Michigan Supreme Court |
| Parties | POST v. UNITED STATES EXP. CO. |
This is an action for negligence in driving a certain horse and express wagon over and upon the plaintiff near the Central depot, in the city of Jackson. The cause was tried in the circuit court for the county of Jackson, where the plaintiff had verdict and judgment for the sum of $500. Defendant brings the case to this court by writ of error. The declaration alleges, substantially, that on November 24, 1886, the plaintiff was traveling along upon a certain highway and public street in the city of Jackson, known as "Park Avenue," and that defendant's horse and wagon, which was then and there under the care, government and direction of a certain servant of said defendant, were then and there passing and traveling along and upon the same highway. Nevertheless the said defendant, by its said servant, then and there, while said plaintiff was exercising due and reasonable care and caution, so carelessly negligently, and improperly drove, governed, and directed its said horse and said wagon that by and through the carelessness, negligence, and improper conduct of the said defendant, by its said servant, in that behalf, and without the fault of the plaintiff, the said horse and said wagon of the defendant then and there ran and struck with great force and violence against the said plaintiff, and thereby the said plaintiff was then and there thrown with great force and violence to and upon the ground there, and by means of the said several premises aforesaid the said plaintiff was then and there greatly hurt, etc. The circumstances of the injury were detailed at some length by the witnesses who saw the injury inflicted, and the questions arising therefrom were submitted to the jury by the court. The contention of counsel for the defendant is (1) That there was no evidence of negligence in the particular averment in the declaration; that the horse was being driven in a proper manner, and was under full control according to the evidence of all the witnesses, both for the plaintiff and defendant; that there as no evidence of any unusual or unreasonable rate of speed, and that the fact, as shown by the evidence, conclusively and without controversy shows that the horse was stopped, and Mr. Brown, the agent of defendant, who was driving the horse, had left the wagon, before the wheels of the wagon had reached the body of the plaintiff; that therefore, under the evidence and averments in the declaration, the case should not have been submitted to the jury. (2) That the court was in error in submitting to the jury the question whether it was negligence in the servant of the defendant in driving across the street at that particular time, and in the manner he did. The plaintiff's testimony tended to show that on November 24, 1888, the plaintiff, a man about 72 years of age, was passing from the Michigan Central freight depot to the baggage-room at the east end of the passenger depot, to reach which he was compelled to cross the tracks of the Michigan Central Railroad. That he started from the north side of the freight house and proceeded west to the walk on the west line of Park avenue; then turned and crossed the track towards the depot on the west side of the planking, opposite the walk on the west line of Park avenue. That when he...
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