Redson v. Michigan Cent. R. Co.
| Decision Date | 11 July 1899 |
| Citation | 79 N.W. 939,120 Mich. 671 |
| Court | Michigan Supreme Court |
| Parties | REDSON v. MICHIGAN CENT. R. CO. |
Error to circuit court, Ogemaw county; Nelson Sharpe, Judge.
Action by Claude E. Redson against the Michigan Central Railroad Company. There was judgment for plaintiff, and defendant brings error. Reversed.
George L. Alexander, for appellant.
Merrie H. Abbott and Charles S. Abbott, for appellee.
The declaration in this case contains five counts, alleging various grounds of negligence. The court disposed of all these in his charge, except one, either on the ground of plaintiff's contributory negligence, or that no negligence was shown on the part of defendant. Failure on the part of the engineer to keep a proper lookout was one. The court instructed the jury that, even if this were so plaintiff was equally negligent in not keeping a proper lookout for the approach of the train, which he knew was then due, and which could have been seen approaching for a distance of over three miles. The failure to give warning by blowing the whistle and ringing the bell was disposed of in the like manner. It was conceded, however that the bell was rung automatically. There was no duty to blow the whistle, as this was not a highway as to which the duty is imposed by statute, and the court so held. The whistle was blown, according to the defendant's witnesses, as soon as the danger was discovered. The only dispute is over the distance of the engine when the whistle was blown. The court also correctly instructed the jury that there was no evidence of failure to provide suitable air brakes, and keep them in proper order. The court very properly instructed the jury that the plaintiff was guilty of contributory negligence, and it might, with propriety, have added that it was negligence of the grossest kind. The question, however, was left to the jury, upon the theory of willful or gross negligence on the part of the defendant.
The authorities do not go to the extent of holding that the mere failure "to exercise due care or the means at hand" is gross negligence, sufficient to justify a recovery, where the plaintiff is guilty of contributory negligence. Plaintiff saw this train coming. He was just in the act of hitching onto a log. Instead of immediately removing his horses which, it is evident, he had then ample time to do, and taking them out of danger, he ordered the log rolled up onto the car, and, before he could then get his horses removed both the horses and his partner, Wentworth, in charge of them, were killed. Had injury resulted to the train, or to the trainmen, it might just as well have been charged that he (the plaintiff) was guilty of intentional wrong, as to charge that the engineer was guilty of it. It would then be gross negligence against gross negligence, willful misconduct against willful misconduct, and intent against intent; and in such case the law leaves both parties where they have placed themselves, and gives recovery to neither. The entire charge upon this point might be sustained under the authorities cited; for the court expressly said to the jury: Under the ruling in this case, the rule of contributory negligence might as well be abolished; for in nearly every case enough testimony would be adduced to permit the jury to say that the engineer might have seen the condition, and by the use of proper means have avoided the accident.
This necessarily leads to a full statement of the facts: All the information conveyed to defendant as to the use of this track by plaintiff, and the method employed by him, comes from a statement made by him to the local agent "that he was going to load these logs upon the cars with horses." The dangerous situation was created entirely by the plaintiff and the defendant was in no sense responsible. Plaintiff knew of the approach of trains, and that it was his duty to look out for them, and that defendant owed no duty to look out for him or his property until its engineer was in position where he must be held, in law, to have realized the danger, and to have run on regardless of it. When plaintiff's employ� and witness, Bowers, gave notice of the approach of the train, his (plaintiff's) witness and employ�, Johnson, was in the act of chaining the log. Instead of stopping then, and removing the horses, plaintiff gave orders to his partner, Wentworth, in charge of the horses, to pull up the log. This was done. One of the horses was off the track, and the other on, when the engine struck. It is very doubtful if Wentworth heard the notice of the approach of the train given by Bowers, and afterwards repeated by plaintiff, who stood on top of the logs, in plain sight of...
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