Sheldon v. Flint & P.M.R. Co.
| Decision Date | 20 January 1886 |
| Citation | 59 Mich. 172,26 N.W. 507 |
| Parties | SHELDON v. FLINT & P.M. RY. CO. |
| Court | Michigan Supreme Court |
Error to Wayne.
Ervin Palmer, for plaintiff and appellant.
William L. Webber, for defendant.
Dallas Sheldon, a boy about 10 years of age, was run over and killed at Wayne junction, on the twenty-first day of July, 1883, by one of defendant's trains, and the plaintiff, his father and administrator, brings this action to recover damages by reason of the killing of his son.
The accident occurred in front of the station-house, where a band of music was standing and playing, and which had caused to assemble quite a large crowd of people to hear the music among whom was the young lad injured by the train. The crowd was composed mostly of an excursion party, who had just left the Michigan Central road, having the band of music with them, and were awaiting the arrival of the defendant's train to take them to Saginaw. The train for Saginaw was made up at this junction, and was composed of coaches coming in from Detroit and Toledo. The train came in from Toledo, and backed down upon the "Y" some 50 or 60 rods west of the depot. The depot building is 85 feet long east and west the west end being about 30 feet from the track, and the east end about 8 feet therefrom, and the space intermediate was planked. When the train on the Central road arrived from Detroit, that part which was to go to Saginaw was left on the main track east of the depot, and with which the "Y" connected. When the defendant was ready to make up the train for Saginaw, defendant's conductors (who stood upon the north side of the "Y," and in plain sight of the people upon the platform in front of the depot) signaled the engineer, who stood with his engine and that part of the train which had come from Toledo, to back down upon the "Y" and couple on the cars left on the main track. The engineer in doing so passed through and by the people standing in front of the depot, and, when the cars had nearly reached the east end of the depot, the boy was struck by the passing cars, and instantly killed. While the cars were moving the band was playing, and the testimony tended to show that the train was backed up at the rate of from four to six miles per hour. The plaintiff claims that the defendant was negligent in the manner and conduct of moving the backing train, and that the death of the child was caused by such negligence, and without his fault. The cause was tried in the Wayne circuit court. The acts of negligence counted on were: (1) Negligently backing its train by and through a crowd of men, women, and children, at a high rate of speed; (2) neglecting to ring the bell or sound the whistle on the engine of this backing train; (3) neglecting to place a man on the rear platform of the backing train, or on the ground to go in front of it, to warn people off the track; (4) negligence in allowing a band to play on the platform of the the depot while the train was backing past the platform and through the crowd; (5) negligence in not using extra care to prevent said backing train from doing injury to the people. At the close of the trial the circuit judge directed a verdict for the defendant, and the plaintiff brings error.
We have the substance of all the testimony before us. There is but one question needing consideration in this case, and that is, does the record disclose any evidence tending to show actionable negligence on the part of the defendant which caused the death of the boy? If it does, then the case should have been submitted to the jury; and, in determining whether such is the tendency of the evidence, the testimony given upon that subject on the part of the plaintiff must be taken as true. Such has long been the settled doctrine in this state. Clark v. McGraw, 14 Mich. 139; Strong v. Saunders, 15 Mich. 339; Perrot v. Shearer, 17 Mich. 48; Dubois v. Campau, 24 Mich. 364; Hayes v. Homer, 36 Mich. 374; Blackwood v. Brown, 32 Mich. 104; Conely v. McDonald, 40 Mich. 150; Hassenyer v. Michigan Cent. R. Co., 48 Mich. 205; S.C. 12 N.W. 155; Guggenheim v. Lake Shore & M.S. Ry. Co., 24 N.W. 801; Marcott v. Marquette, H. & O.R. Co., 47 Mich. 1; S.C. 10 N.W. 53.
In the last-mentioned case Mr. Justice COOLEY says: I think this is a fair statement of the rule raising the liability. And now what are the facts and circumstances of this case, as presented in the record, most favorable to the plaintiff? It is with those we have to deal, and those only.
The boy killed was about 10 years of age, and so far as appears was possessed of the usual intelligence and judgment of boys of his age; and, had it not been for the inconsiderate action of the crowd in pushing him against the car, would have taken care of himself and avoided the injury which caused his death. He was accompanied by his brother, who was then 13 years old; and under these circumstances they had the consent of their mother to go to the junction to listen to the band of music which was then playing and enjoyed by the boys. This discloses no negligence on the part of the parent The excursion party...
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