Robinson v. Flint & P.M.R. Co.

• Decision Date: 31 January 1890
• Citation: 79 Mich. 323,44 N.W. 779
• Parties: ROBINSON v. FLINT & P. M. R. CO.
• Court: Michigan Supreme Court

44 N.W. 779

79 Mich. 323

ROBINSON v. FLINT & P. M. R. CO.

Supreme Court of Michigan

January 31, 1890

Appeal from circuit court, Isabella county; HENRY HART, Judge.

Action by Sheldon Robinson against the Flint & Pere Marquette Railroad Company, to recover damages for the killing of his ox. The company appeals from a judgment for plaintiff.

Wm. L. Webber, for appellant.

John Giberson, for appellee.

GRANT J.

Plaintiff's ox was killed upon a highway, while crossing over the defendant's road, by a train of cars. He brought suit claiming that the ox was killed by defendant's negligence. The declaration contained three counts. The first count alleged that the negligence consisted in running its train at a high and dangerous rate of speed, and neglecting to slow up when it was seen that the ox was in danger. The second count alleged that the defendant carelessly and negligently caused an embankment of sand and gravel to be formed on each side of its track, from two to three feet high, and permitted the same to remain several days, and that the ox was retarded in consequence, while crossing the track. The third count combines both these allegations of negligence, and the further one that defendant neglected to sound the bell and blow the whistle 40 rods from the crossing, as required by statute. The undisputed facts are these: The crossing was on a public highway in the country, near the plaintiff's farm. There were two crossings, one of which led into the plaintiff's yard and on which the ox was killed, but both were in the highway, and used by the public. The train was a wild one; that is, one which was not running upon schedule time. The ox was one of a herd, about 15 in number. All the others had passed over the track before the engine reached the crossing. Plaintiff saw the cattle and the train. He testifies that the engineer blew the customary danger signals-three sharp toots-when within about 15 rods of the crossing. His cattle were running at large in the highway. He knew this, for he and his son were at work in the fields a short distance away, and saw them. He testifies. "I saw quite a number of the cattle, just a little while before the train came down. They were about three or four rods east of the crossing, in the public highway." The bell was rung automatically, by air. The testimony as to the speed of the train, the blowing of the whistle 40 rods from the crossing, and the embankment of sand and gravel, was conflicting. Some of plaintiff's witnesses estimated the speed at from 50 to 60 miles an hour. The engineer testified that he blew the whistle; that he was running about 40 miles an hour, till within about 20 rods of the crossing, when he suddenly saw the cattle coming towards the track; that he immediately shut off steam, applied the brakes, and did all he could to stop the train, except to reverse the engine; that a reversal of the engine would have endangered the lives of those on board. The important question submitted upon this record is this: Was the plaintiff guilty of contributory negligence in permitting his cattle to run at large in the public highway, near this crossing, without any keeper? By the common law, every person must keep his animals upon his own premises. He may use the highway for the purpose of driving them from place to place. He cannot use it for a public pasture. He may pasture in the highway opposite his own premises, for he is entitled to the herbage growing there. He is not entitled to pasturage opposite the lands of others, even when the cattle are in charge of the keeper. Campau v. Konan, 39 Mich. 362; Bertwhistle v. Goodrich, 53 Mich. 457, 19 N.W. 143. Such use is not an incident of travel for which the highway is dedicated to or appropriated by the public. In Campau v. Konan it was doubted by this court whether authority could be conferred upon the board of supervisors or any other body to permit beasts to run at large upon public highways. A similar provision was held unconstitutional and void by the court of appeals of New York. Railroad Co. v. Munger, 5 Denio, 255. Section 8, Act No. 185, Pub. Laws 1867, provided that the act should not apply to that portion of the state lying north of the tier of townships 12 N., unless so ordered by the board of supervisors of any county lying north of said tier of townships. The township in this case lies north of that line. That act, therefore, conferred no right to the use of the highway in that part of the state that did not exist at common law. The rule of the common law prevails in this state, and in many of the other states. The act above mentioned, therefore, has no bearing upon the determination of the question in issue.

It is to be presumed that the defendant had complied with the provision of the statute in regard to fencing its road, and constructing this crossing with due regard to the safety of persons and property passing over it and providing its engine and cars with the proper appliances. Having done this, it was entitled to the use of its road for the passage of trains at all times, to increase the speed of its regular trains when behind time, and to run special or wild trains whenever its business required. The law did not limit the rate of speed of its trains. The business of the country demands of railroads rapid transit, both for persons and property. It has nowhere been held that a speed of even 60 miles an hour is negligence, when a train is running through the country outside of villages and cities, or through a sparsely settled community. It is well known that trains are now being run in many parts of the country at the rate of 50 to 60 miles an hour. It is difficult to see how the blowing of the whistle 40 rods from the crossing would have prevented the injury. Juries must not be left to conjecture. Not only must the negligence be proven, but also...