Sanborn v. Detroit, B.C. & A.R. Co.

• Decision Date: 13 May 1892
• Parties: SANBORN v. DETROIT, B. C. & A. R. CO.
• Court: Michigan Supreme Court

52 N.W. 153

91 Mich. 538

SANBORN v. DETROIT, B. C. & A. R. CO.

Supreme Court of Michigan

May 13, 1892

Error to circuit court, Alpena county; ROBERT J. KELLEY, Judge.

Action by Alonzo Sanborn against the Detroit, Bay City & Alpena Railroad Company for injuries received at a private crossing. Judgment for plaintiff. Defendant brings error. Reversed.

A. M. Henry, (J. C. Shields, of counsel,) for appellant.

Turnbull & Dafoe, (Frank Emerick, of counsel,) for appellee.

LONG J.

This cause was tried in the Alpena circuit court. Plaintiff had verdict and judgment. Defendant brings error.

The first count of the declaration alleges that "the defendant, at or before the time of committing the grievances, was a corporation organized and existing under the general railroad laws of this state, and was operating and running its railroad and business between Alger and the city of Alpena, portions of its road and tracks passing through Alpena county. And the said portions of its road and tracks which passed through Alpena county were not, and never had been, fenced, and the public and plaintiff during all of this said time were invited and permitted by the defendant to bring timber and logs to its said track, and pile and skid said timber along the side of said track, so the same could be conveniently loaded upon the cars of defendant for transportation. And the plaintiff says that on the 18th of January, 1890, at the said county of Alpena, he was engaged by the invitation of defendant, with a team of horses and log boat, in drawing logs and timber to defendant's said track at a point about one mile southwest of the city of Alpena, and was then and there piling and skidding the said timber along the side of defendant's said track, for the purpose of having the same loaded upon defendant's cars and transported to market. And plaintiff says that he had been thus engaged at work for three weeks previous to the said 18th day of January, and that in doing this said work had to use defendant's said track and road, and pass and repass over the same very frequently, and the defendant and its servants knew and had knowledge during all this time while plaintiff was doing his said work, as aforesaid, that plaintiff was thus using its said road and track and doing this said work as aforesaid. And the plaintiff says it was the duty of defendant, in running its trains and carrying on its said business, to have given warning to plaintiff in some manner of the approach of its trains, and not to have run its trains against and into plaintiff, while he was at work as aforesaid, yet the said defendant negligently and carelessly neglected its said duty on said 18th day of January, 1890 while plaintiff was at work as aforesaid, and while observing due care on his part, the defendant negligently and without any warning whatsoever run and caused to be run one of its freight trains along its said track into and against said plaintiff and his said team and boat load of logs, while plaintiff was crossing defendant's said track, doing the work aforesaid, thereby violently knocking the plaintiff down, and throwing the said team and log boat and its load of logs violently over and against the plaintiff, thereby greatly and permanently injuring plaintiff."

The second count alleges "that the defendant, well knowing its said duty, and on the 18th day of January, 1890, at the county of Alpena, did not and would not observe the same, but, upon the contrary, carelessly, negligently, and unlawfully so conducted its said business and managed and run its trains on its said road and along this portion of its said track when plaintiff was at work, as aforesaid, as not to give plaintiff any warning or notice of the approach of said train, and then and there, without sounding or giving any signal, alarm, or notice to plaintiff that any of its trains were approaching, did with great force then and there run into, over, and against plaintiff with one of its said engines (known as No. 14) and train of cars, thereby permanently and greatly injuring plaintiff, and causing all the damage set forth in the first count of this declaration, which said portion of said first count is hereby made a part of this count."

The third count alleges: "The defendant was daily running its engines and trains, transporting logs and lumber to the city of Alpena; and plaintiff says at said time he was by the permission, invitation, and consent of defendant using a portion of defendant's said road and track near the city of Alpena in banking, skidding, and piling logs upon it for the purpose of having the same transported by defendant's said trains to the city of Alpena, and the defendant and its agents knew and had notice that plaintiff was so using its said tracks and premises, and was in the habit of giving plaintiff notice of the approach of the said trains or engines over that portion of its said track being used by plaintiff as aforesaid; and plaintiff says it was the defendant's duty to give him such notice at this said time, but the plaintiff says that the defendant recklessly and unlawfully neglected its said duty, and carelessly, at the said time, January 18, 1890, ran a train of cars over this said portion of its road where plaintiff was at work, as aforesaid, without any notice or warning to plaintiff whatsoever, and caused the said train of cars to run against, over, and upon plaintiff, causing all the damage and injury to him specially set forth in the first count of this declaration."

It appeared upon the trial that at the time of the injury complained of the plaintiff was hauling and skidding pine saw-logs along defendant's track, about four miles from the city of Alpena, in the woods, and from one half of a mile to a mile from any highway and railroad crossing. The logs were being taken off from an 80-acre tract of land, through which the railroad extended north and south, the logs being taken from the east side of the railroad track. The plaintiff was a man about 37 years of age at the time of the injury. He was hauling out these logs for a Mr. Chapman, who had the job. Plaintiff had been at work two or three weeks prior to the injury. Others were there also, putting in logs alongside the railroad track, for the purpose of having them hauled by the defendant company to Alpena. Skidways had been made on both sides of the railroad track across this 80-acre tract, and the logs were being put on the skid ways. For the purpose of crossing and recrossing the railroad track with the boats upon which the logs were being hauled, Mr. Chapman had in three places across this tract of land placed planking upon either side of the railroad track, and had called the attention of the section foreman of the defendant company, who had examined them, to see whether they would interfere with the running of the trains. Defendant's road was used and operated as a commercial road, running freight and passenger trains thereon, as well as a logging road for the hauling of sawlogs along its line to Alpena and other points. The logs from these 80 acres were being put upon the skidways at the rate of from 100 to 200 per day. Upon either side of the railroad, and coming up to the defendant's right of way, the lands were covered with timber and brush, so that the railroad track could not be seen until one approached within two or three rods of it, when the track could be seen for a mile from where the plaintiff was employed. The plaintiff's haul of logs was only about 30 rods from the railroad, and he was perfectly familiar with the running of the trains over the road, as during the whole three weeks of his work he had been in the habit of crossing the track every day. The train by which the plaintiff was injured was a logging train. All trains had usually given the statutory signal by ringing the bell and sounding the whistle at Beck's farm crossing, which was from one half to three quarters of a mile north of the place where the plaintiff was working.

On the afternoon of January 18, 1890, at about 2 o'clock, the plaintiff claims that, having loaded three logs upon his boat, some 30 rods distant from the railroad track, he started to haul to the skidway across the track. Two of the logs were 20 feet in length, and the other 18 feet. He testified that he drove upon a little sharp hill about three rods from the track, and stopped, and looked for the train; that he was then about a horse or two horses' lengths from the track; that he stepped forward of his horses, so he could see up and down the track; that he heard no sound of the approaching train, but that it was snowing and blowing so that he could only see a few rods in either direction; that he then went back to his load, stepped upon one of the logs, started his team forward, which took him from one to two minutes, and when his horses had so far crossed the track that their hind feet were between the rails and his log boat just entering upon the track, he heard a toot of the engine, looked up, and saw the train almost upon him; that he attempted to swing his horses around, and get them off from the track, and for that purpose stepped from the log upon which he was riding, picked up a switch, and struck them; that his horses were frightened by the toot of the engine, and stopped, when the engine struck between the horses and the boat, overturning the logs upon him, and injuring him. He also testified that while all the trains had been accustomed to give the statutory signal at "Beck's Farm Crossing," the train by which he was struck did not ring the bell or sound the whistle at that crossing. He testified upon that subject as follows: "Question. During all this time, state where the trains would give you the signals as they came from Alpena. Answer. ...