Schwartz v. Mineral Range R. Co.

• Decision Date: 26 May 1908
• Citation: 153 Mich. 40,116 N.W. 540
• Parties: SCHWARTZ v. MINERAL RANGE R. CO.
• Court: Michigan Supreme Court

153 Mich. 40
116 N.W. 540

SCHWARTZ
v.
MINERAL RANGE R. CO.

Supreme Court of Michigan.

May 26, 1908.

Error to Circuit Court, Ontonagon County; Samuel S. Cooper, Judge.

Action by Kate Schwartz, administratrix, against the Mineral Range Railroad Company. From a judgment for plaintiff, defendant brings error. Reversed, and new trial granted.

Argued before BLAIR MONTGOMERY, OSTRANDER, HOOKER, and CARPENTER, JJ.

[116 N.W. 540]

A. B. Eldredge and A. E. Miller, for appellant.

P. H. O'Brien, for appellee.

BLAIR, J.

This is an action for the negligent killing of one John Fravert on the 3d of February, 1904. The accident occurred on the Chicago, Milwaukee & St. Paul Railway

[116 N.W. 541]

where the same crosses a public highway known as the Rockland Road, running from Ontonagon to Rockland. This highway at the point in question crosses the railway at an angle of about 65 degrees, the highway running northwesterly and southeasterly; the railway at the point of crossing running almost due east and west. The crossing is about one mile east of the village of Ontonagon, and almost immediately west the railway begins to curve, and descends a sharp grade into the village of Ontonagon. One thousand one hundred and forty feet east of the center of the crossing is a whistling post, and at this whistling post the railway has commenced to curve quite sharply to the southeast. On the east side of the highway, 197 feet from the railway track, is a barn. On the southerly side of the railway, 56 feet south of the south rail, and extending 1,080 feet from the crossing easterly, was a high board snow fence, 7 feet 6 inches in height, with an average space between the boards of about 2 1/2 inches; the widest spaces being 5 1/2 inches. Some of the spaces were only an inch. The highway sloped down to the railway track, and at a point 96 feet south was in its natural condition 3 1/2 feet higher than at the crossing. At the time in question there was snow upon the ground to a depth of two or three feet in the traveled part of the highway. The snow thrown out by the snowplows of the railroad company into the highway at and near the crossing had been thrown upon each side of the highway for a distance of 15 to 20 feet back from the crossing. Its height was in dispute; the witnesses for the plaintiff claiming that it was six or seven feet high, the defendant's witnesses that it was from four to five feet. By reason of the removal of the snow from the railroad track, the inclined 96 feet above referred to had, at the time of the accident, been shortened up so that for the last 30 feet it was quite sharp; and the witnesses are all agreed that a loaded team which started down this incline could not be stopped until it had reached the track. The track east of the crossing is in a cut, the south bank of which it about six feet above the track at the crossing, and gradually decreases in height to the east end of the snow fence which stands upon it. ‘It is on a bank about 3 feet above the highway and about 6 feet above the level of the railway track.’ Defendant's train which struck and killed plaintiff's intestate was due in Ontonagon at 1:35 p. m., and due to leave on its return trip east 1:55 p. m. The accident occurred at about 2:05 p. m.

The only witness of the accident testified as follows: ‘I saw John Fravert that day about a mile on the other side of the crossing, or a mile and a half on the Rockland side of the crossing. I was coming to Ontonagon with a load of hay. John Fravert was hauling wood to Ontonagon with a double team of horses. He had a big load of cordwood. I was behind him. I drove right up pretty close to him, five or six feet maybe. The team was behind. We stopped once at the barn up there by the crossing. I mean the barn that is near the railroad crossing. It is on the right-hand side as we were going along. We stopped on the railway side of the barn. Q. What did John Fravert do, if anything, after you stopped there? A. He charged over onto the left-hand side of the load, and started up, went down to the crossing. Just as he got on the crossing, the train came along and struck him. The train ran into the load, and dragged him down the track, and threw the sleigh off the railroad. Q. Now, state whether you were listening for a train as you were approaching that crossing. A. Yes; I was listening for a train. I did not hear any whistle blown or bell rung. I was about 15 or 20 feet from the crossing when the train went by. The snow was piled up pretty high from the barn to the crossing on both sides. * * * Q. Now, how was the snow with reference to that fence, how high was it? A. Well, it was piled up pretty high. I think it was up to the top of the fence all right, if it wasn't over. Coming from the barn along the highway, towards the railway, I couldn't see a train until it got to the crossing. Then I seen it pretty near to the crossing. Q. Why couldn't you see the train? A. Well, there was too much snow piled up there. * * * It was a pretty cold day, and he was well bundled up. I didn't notice whether he had his cap down over his ears or not. It was a very cold day. He stopped at the barn two or three minutes anyway, stopped to rest his horses, and then he changed to the other side of the track, of the sleigh, that is nearest on-that is towards the west, the left-hand side-so that the way the train came the wood was between him and the train. Q. And then he went down to the crossing from that spot without stopping at all? A. Yes. Q. The team walking? A. Yes. Q. Now, when you say that on account of the snow a man couldn't see from the barn across that fence, you mean a man walking in the highway? A. Yes. Q. You could have seen from the top of that load of hay if you had looked? A. Yes; I guess I could. From the top of the load of hay I seen the train when it was about 20 or 25 feet from where the wagon road crosses-I guess 20 feet-and then the train was coming towards the crossing about 20 feet from the crossing. * * * At the time that Fravert stopped there, I didn't know what he stopped for. He didn't say what he stopped for. Q. Now, did you know whether he stopped to rest his horses or not? A. No; I did not. I had my cap pulled down, but I guess I could hear all right if there was anything to hear. * * * Q. Mr. Snyder, do you remember whether you looked toward the east that day? A. I looked...