Schindler v. Milwaukee, L.S. & W.R. Co.

• Decision Date: 01 November 1889
• Citation: 43 N.W. 911,77 Mich. 136
• Parties: SCHINDLER v. MILWAUKEE, L. S. & W. RY. CO.
• Court: Michigan Supreme Court

43 N.W. 911

77 Mich. 136

SCHINDLER v. MILWAUKEE, L. S. & W. RY. CO.

Supreme Court of Michigan

November 1, 1889

Error to circuit court, Gogebic county.

Action for personal injury by Arthur Schindler, by his next friend against the Milwaukee. Lake Shore & Western Railway Company. Verdict and judgment for plaintiff. Defendant brings error.

It is not competent for the trial court in an action for injuries to allow a mass of testimony to go before a jury and then leave them to decide what is legal negligence and what is not.

M. M. Riley and C. M. Howell, ( Bradley G. Schley, of counsel), for appellant.

Hayden & Young, for appellee.

CAMPBELL J.

Plaintiff who is a little boy, was in the back part of a long sleigh, loaded with beer, owned and driven by one John Schupp, a teamster and agent for a beer house; and the sleigh was struck by the rear end or steps of a caboose, while crossing defendant's track, at Wakefield station, in Gogebic county. The accident took place on the depot grounds, January 29, 1887. Plaintiff was thrown out, and fell on the track. The hind wheels of the caboose did not touch him, but the fore wheel on one side caught and bruised one of his legs, without running over it. The injury required amputation. At that station there is a main track and two side tracks, lying on the south side of defendant's premises, running east and west; and at the date in question one Miller, whose agent Schupp was, had a beer warehouse on defendant's grounds, north of the tracks. A village street, known as "Sunday Lake Street," 60 feet wide, as laid out, ran across, north and south, between the station and this warehouse, which was 152 feet east of the street. A spur, or branch, called the "Sunday Lake Mine Spur," left the main track between the station and Sunday Lake street, running on a north-easterly curve from a switch about 50 feet west of the street, thence crossing the street, and extending north-easterly to a mine, the distance of which does not appear. The accident took place about 50 feet north-east from Sunday Lake street, on this spur. The front village street, called "Nunnemacher Street," lay north and parallel with the main track, as far east as Sunday Lake street, and thence about 60 feet from and parallel with the spur track, being crossed by Sunday Lake street. The depot grounds, which extended a considerable distance east and north-east from Sunday Lake street, on both sides of the spur and on the main track, were not inclosed by fences. On the morning of the day in question, Schupp drove down to the beer house with a long sleigh,-about 18 feet long,-drawn by a mule team, to get a load of beer, in kegs. He unlocked the warehouse, and got 14 kegs, which he loaded in his sleigh. While he was in the warehouse, a train of freight and ore cars passed, going westward to the station, and backed up towards the spur, over which a part of the cars were to go. The rear car was a four-wheeled caboose. Several children, including plaintiff, had been allowed by Schupp to ride down with him; and when he was ready to start they had piled into his sleigh, the back part of which was not filled with kegs. According to his testimony, he drove off the larger boys, and put off the girls and plaintiff, and started towards the village, on a track through the snow, which he claims had been commonly used, across defendant's grounds to the intersection of Nunnemacher and Sunday Lake streets, which struck the spur rails about 50 feet eastward of Sunday Lake street, and between 25 and 30 feet north of the north side track, which was a few feet south of the beer house. Plaintiff had got or been put again into the back of the sleigh, and was not seen by Schupp, or any one else, but some of the other children. The snow was deep, and ridged on either side of the spur by the snow-plow, between 18 inches and 2 feet. The passage-way was not a road, but a single path, made through the snow as a short cut, by persons coming down to the track east of Sunday Lake street; rising at the ridge, and descending into the trough between the ridges, where there was a single line of rails. According to Schupp's statement, he stopped about 10 feet from the spur, and saw the caboose and cars ahead of it, but did not see thot they were backing. He drove on over the ridge, and across the track; one of the mules slipping, but recovering himself. He then saw the cars coming, and whipped up his team, and they got across, except that the rear 18 inches of the sleigh was struck by the steps of the caboose, and the sleigh upset. Plaintiff fell on the track, and the hind wheels of the caboose did not touch him; but the north fore wheel hit his leg, and pushed him along a few feet, injuring him as before mentioned. The caboose was stopped by the beer kegs, which were not run over, but lifted up the end. It stopped a very few feet from where the accident happened. The testimony of plaintiff's witnesses, except Schupp, and of all the other witnesses, agrees that the cars were moving back when Schupp started from the beer house, and were in sight all the time. There is no testimony indicating that the plaintiff was seen or visible before the accident, being behind the beer kegs, sitting on the bottom of the sleigh. The case was submitted to the jury, overruling defendant's objections on the general merits, and upon various points made specifically; and they found a verdict of $10,000 for plaintiff. Defendant brings error.

After refusing a continuance for reasons that we shall not consider, and in language which was also excepted to as prejudicing the jury, the court also refused to entertain an objection that the declaration was not such that any testimony could properly be introduced under it. The judge did so, using this language: "If the defendant objects to the declaration on the ground that it does not with sufficient definiteness apprise him of the negligence complained of, the objection should be made before the case comes on for trial. Our own supreme court has criticised that method of procedure pretty severely. I have no doubt but what this motion as made here raises a question which is very close to the line; but, being so utterly opposed to this method of practice of waiting until the trial comes on before making the objection to the declaration, I shall leave the responsibility with the plaintiff's counsel. Let the witness be sworn."

The declaration contains one count, which is substantially to this effect. After setting forth the ownership by defendant of the main and side tracks, including the Sunday Lake mine branch or spur, it proceeded: "And which main and side tracks, at and near said station, were wholly uninclosed, and were then and there, at all times, open, and were then and there contiguous to a public highway and street of said village, called 'Sunday Lake Street,' and crossed said street and said side track, called the 'Sunday Lake Mine Track;' commencing at or near said depot, ran, in an easterly direction, across a certain other public road; said last-mentioned public road running, from said Sunday Lake street, across the right of way of said defendant, to and along the side track nearest said main track. And that said last-mentioned public road was used by large numbers of the people of said village, residing in the vicinity of said station and depot, and had been so used and traveled upon, to the knowledge of said defendant, its servants and employes, for a long time prior to said 29th day of January, 1887. That the plaintiff, at the time aforesaid, was an infant of tender age, to-wit, of the age of five years, and resided with his parents, in said village of Wakefield, on said Sunday Lake street, and in the vicinity of sai station and depot of defendant. That at the time aforesaid, to-wit, on the 29th day of January, 1887, the plaintiff was riding in a sleigh drawn by a team of horses, which sleigh and team was being driven by John Schupp, upon said road, towards said Sunday Lake street, with all due care and diligence. That while said sleigh was approaching the crossing of said Sunday Lake mine track a certain freight train of defendant, with a locomotive attached thereto, and under the care and management of divers servants of the defendant, was standing upon said side track, to the west of said road, and about eighty feet therefrom. And that, while said sleigh, with the plaintiff therein, was crossing the said railroad track at the said crossing, upon said public road, the defendant then and there, by its servants, so carelessly and improperly managed the said locomotive engine and train that, by and through the negligence and improper conduct of the defendant, by its said servants, in that behalf, the said train then and there ran and struck with great force and violence upon and against the said sleigh; and thereby the said plaintiff was then and there thrown with great force and violence, from and out of the said sleigh, to and upon the track of said railroad. And the said plaintiff, when so thrown upon said track, was struck by the rear car of said train, and was run over by the wheels of said car then and there, without any fault or negligence on the part of said plaintiff, his parents or guardians, and without any fault or negligence on the part of said John Schupp, the driver of said sleigh. And by means of the premises, and by and through the wrongful conduct, carelessness, and negligence of said defendant, its agents and servants, as aforesaid, the leg of said plaintiff was cut off, and he then and there, by means of the premises, sustained the permanent loss of one leg as aforesaid, and was rendered sick, sore, lame, and disordered, and so remained and continued," etc. The rest refers to damages.

When plaintiff's...