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

• Decision Date: 28 July 1891
• Citation: 49 N.W. 670,87 Mich. 400
• Parties: SCHINDLER v. MILWAUKEE, L. S. & W. RY. CO. [1]
• Court: Michigan Supreme Court

49 N.W. 670

87 Mich. 400

SCHINDLER v. MILWAUKEE, L. S. & W. RY. CO. ^[1]

Supreme Court of Michigan

July 28, 1891

Error to circuit court, Gogebic county; S. B. DABOLL, Judge.

Action by Arthur Schindler against the Milwaukee, Lake Shore &amp Western Railway Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

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

Hayden & Young, for appellee.

LONG J.

This cause was in this court at the June term, 1889, and decided in October, and is found reported in 77 Mich. 136, 43 N.W 911. Only three of the judges were sitting at the time of the argument. The cause was reversed and remanded for a new trial; Mr. Justice CHAMPLIN and the writer of this opinion concurring in the reversal of the judgment, but reserving their opinion upon the question of defendant's negligence, and agreeing to the reversal of the case upon the ground that the declaration did not properly allege the defendant's duty, and its neglect to observe such duty. The case has been retried resulting in a verdict and judgment for the plaintiff for the sum of $8,500. Defendant brings the case to this court by writ of error. The opinion by Mr. Justice CAMPBELL in 77 Mich., and 43 N.W. Rep., supra, sets out in great detail the most of the circumstances involved in the case, though I shall have occasion to notice at some length some of these circumstances, and others which are made to appear in the present trial. The plaintiff at the time of the injury, which occurred on the 29th day of January, 1887, was an infant aged five and a half years. The place where the injury occurred, and the location of the railroad tracks, and the streets of the village as far as the highway crossing where the injury occurred, together with the depot ground, freight buildings, and the building where the beer was stored, are fully represented by the map, as follows:

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Since the former trial the declaration by permission of the trial court has been amended. As amended it contained two counts, but upon the trial the circuit judge compelled the plaintiff to elect on which count he would proceed, and he elected to proceed on the first. This count of the declaration sets out what is claimed to be the duty of the defendant in running its trains over what is called "the track to Sunday Lake Mine," and its neglect of duty by which it is claimed the injury was occasioned; and charges that the defendant company was guilty of gross negligence in the management and control of the three cars which were pushed or kicked backward along this Sunday Lake branch track over and across this highway leading from the corner of Nunnemacher street and Sunday Lake street towards the beer-house, situate near the main line of the defendant's railroad; said cars being kicked across said road with great speed, unaccompanied by a locomotive and unattended by brakemen or conductor of the train, or by any person to set brakes or give signals or give warning, and with no one at the rear or advancing end thereof to observe the crossing, or signal or warn approaching travelers in case of need, and with no one on or about said detached and moving cars acting as a lookout, switchman, or brakeman, with no brakeman or switchman at the crossing to warn persons approaching, and without the knowledge of plaintiff or Schupp, (in the rear end of whose sleigh plaintiff was riding.) The declaration alleges that this was gross negligence on the part of the defendant towards the plaintiff. The declaration further alleges, as to the place where the injury occurred, that at the time of the injury there was, from a point at or near the junction of said Nunnemacher and Sunday Lake streets, a private road which led across said Sunday Lake branch track in a south-easterly direction, to the warehouse grounds situate along defendant's main line and side tracks, which road had been for a long time prior thereto used by the public of Wakefield village, and others who chose to use it, for travel between the village on the Nunnemacher side of said tracks and the warehouse grounds, and that such use was permitted and encouraged by defendant at the time of the injury; that children, at and before that time, had been accustomed to pass and repass along said private road, and over said crossing, which was well known to defendant; and that defendant then and there owed a duty to all persons traveling over said road, and about to cross said branch track there, and to take precaution in running said cars over said crossing to prevent injury to persons thereon. Some additional evidence appears in this record to that which appeared upon the former. The defendant's counsel presents a brief containing 50 pages of printed matter. The brief argues many questions which have been settled by the jury.

At the close of the testimony counsel for defendant submitted the following questions to be specifically answered by the jury: "(1) Did the employes of defendant, in charge of its train at Wakefield at the time of the accident, know that the child Arthur Schindler was in the sleigh of John Schupp? Answer. No. (2) During the time Schupp was moving from the beer-house towards the crossing C were the cars of defendant being backed up Sunday Lake spur track? A. Yes. (3) Was there anything to obstruct the view of Schupp of the cars that were backed from the time he left the beer-house until he reached the crossing C? A. Yes. (4) Was the action of the trainmen in charge of defendant's train at the time of plaintiff's injury, in pushing or shunting the cars on Sunday Lake spur track in the manner which they did, such as would indicate they were regardless of the consequences, and did not care whether they ran the plaintiff down or not? A. Yes. (5) Could John Schupp, by the exercise of such care and prudence as an ordinarily careful and prudent man should have exercised under the circumstances, have discovered that the cars of defendant were being backed upon Sunday Lake spur track in time to avoid the accident? A. Yes."

One of the main questions involved in the controversy here is that under the finding of the jury, their general verdict should have been in favor of the defendant. Counsel for defendant says in his brief that any claim plaintiff has for recovery must be based upon the fourth question and answer; that of the five questions the second and third are unimportant, as they bear only upon Schupp's negligence, and by answer to the fifth question the jury have distinctly found Schupp guilty of negligence. It is contended that the answer of the jury to the first question shows that the defendant was in utter ignorance of the presence of any one there to whom it owed special duty; that the answer to the fourth question, in the light of the answer to the first question, is a plain contradiction and absurd; and that, irrespective of the first question and answer, this fourth answer is utterly unsupported by the evidence. Thus it is that the learned counsel for defendant attempts to sweep away the special findings of the jury, except their finding that Mr. Schupp, the driver of the sleigh in which plaintiff was riding, was guilty of contributory negligence. As we have said, the declaration charges the defendant with gross negligence. The jury have found the defendant guilty of gross negligence by the finding that its servants were regardless of consequences in shunting the cars upon the Sunday Lake spur track in the manner they did, and that these servants and employes of the defendant did not care whether they ran the plaintiff down or not. The answer of the jury to the first question does not bear the interpretation for which counsel contends. The finding that the employes of the defendant did not know that the child was in the sleigh of John Schupp is not a finding that the employes did not know that people were frequently in the habit of crossing and recrossing this spur track with the knowledge and consent of defendant company. It is not a finding that these employes did not know that John Schupp was at the beer-house at the time their train came down the main track, and at the time they shunted or kicked these three cars loose from their train across this private way, over which people were accustomed to pass and repass. The testimony shows conclusively that these employes saw Schupp at the beer-house when their train came in, and knew he was on his way to that crossing at the very time when they kicked these cars across this highway. The fact, therefore, that these employes did not know that plaintiff was in John Schupp's sleigh would have no bearing upon the question of the gross recklessness of these employes in kicking these cars across this way in the manner they did. The defendant and its employes owed a duty to all persons crossing and recrossing at that point; for it appears by the testimony in this record, which was fairly submitted to the jury, that the railroad company not only permitted its use to all persons crossing over to this warehouse, but had opened that very way by shoveling out the snow for people to pass and repass across this spur track at that point. It is asserted by counsel for defendant that the answer to the fourth question is utterly unsupported by the evidence. It must be remembered that this question was propounded by counsel for defendant, and, now that the jury have found the fact against him, he complains that there was no testimony in the case tending in the slightest degree to support this finding. The testimony introduced on the part of the plaintiff tends to show that the children in the village of Wake-field often used this crossing; played upon and about it; and walked the road, back and forth, upon...