Shufelt v. Flint & P.M.R. Co.

• Decision Date: 25 July 1893
• Citation: 55 N.W. 1013,96 Mich. 327
• Parties: SHUFELT v. FLINT & P. M. R. CO.
• Court: Michigan Supreme Court

55 N.W. 1013

96 Mich. 327

SHUFELT v. FLINT & P. M. R. CO.

Supreme Court of Michigan

July 25, 1893

Error to circuit court, Osceola county; J. Byron Judkins, Judge.

Action by John Shufelt against the Flint & Pere Marquette Railroad Company for injuries to a team from a collision at a railroad crossing. Verdict was directed for defendant. Plaintiff appeals. Affirmed.

Charles A. Withey, for appellant.

C. M Beardsley and O. F. Wisner, for appellee.

GRANT J.

I concur with my Brother MONTGOMERY that there was no negligence in the rate of speed of the defendant's train or in the piling of the wood along its track. I think the circuit judge was correct in directing a verdict for the defendant.

1. The plaintiff's wife, herself, was guilty of contributory negligence. The road was dry and hard. She had two horses, and a lumber wagon with a box, and a spring seat fixed upon the box. She did not stop her team to listen. She had been for a long time familiar with the crossing, and had frequently driven over it. When upon the little rise of ground from 90 to 100 feet from the crossing, she looked to the west, and saw no train approaching. The horses were accustomed to the cars, and were not afraid. They were farm horses. She said she was on a slow walk. She did not stop and the horses stepped upon the track just as the train struck them. If the wood pile, from the rise of ground to the track, obstructed her view of the approaching train, it was her duty to stop and listen when nearer the track. Had she stopped upon the rise of ground, it is quite probable that she would have heard the train. She testified: "I did not stand still. My horses were on a walk, and when I got there I pulled on the lines, and came almost to a standstill and looked and listened if I could hear the cars, and I did not hear them; so I went along. I was on a slow walk. I did not stop. I drove right onto the crossing. The horses were between the rails when I first saw the train. When I got onto the track the train was right there." She did not listen for any train or signals, from the rise of ground to the track. She evidently assumed that there was no danger of the approach of a train before she could get across. In this she was not in the exercise of common prudence, either for her own safety, or that of those traveling upon the railroad. Van Auken v. Railroad Co., 55 N.W. 971, (decided at the present term,) and authorities there cited. But, according to the evidence of her own witnesses, when she came within 20 feet of the track she could have seen the train, had she looked. It is no excuse to say that she was looking to the east. The track to the east was in plain view for some distance back from the crossing. The danger, if any, was from the other direction. She could, however, have looked both ways in an instant, and had ample time to stop within 20 feet. While she was walking her team, according to her own testimony, less than 100 feet, the train, which was running at a lawful rate of speed, ran about 80 rods. Passengers upon the highway must be charged with knowledge of the lawful rate of speed at which trains may run, and must govern themselves accordingly. Trains are not limited in the rate of speed they may run in the country, and across the public highways, where the travel is limited. The commerce of the country demands rapid transit. Robinson v. Railroad Co., 79 Mich. 328, 44 N.W. 779. These trains must run where the view is obstructed by cuts, by embankments, by trees, and other things. He who does not choose to stop and listen, where he cannot see, must suffer the consequences of his own negligence. My own view of the duties of travelers upon the highway, in approaching railroad crossings when they cannot see, are fully expressed in Van Auken v. Railroad Co., supra, and the authorities there cited.

2. The court was, in my judgment, correct in holding that it was conclusively established by the evidence that the statutory signals were given. I deem it proper to refer to the entire testimony in the case on this point, and the circumstances surrounding each witness who has testified thereto, in order that there may be no misapprehension of the facts to which the law is to be applied: Mrs. Shufelt's testimony amounts simply to this: that, if the signals were given, she did not hear them. The only reason she had for saying that they were not given was because she did not hear them. She was in the midst of the noise made by two horses and a lumber wagon traveling over a hard road, and did not listen from the time she left the rise of ground until she reached the track. Miles J. McKay was sitting on his horse, 30 or 40 rods south of the crossing, facing west of north. Was watching the train all the time until it came around the curve. He was waiting for a man who was coming across a farm near where he stood. His testimony, on direct examination, is: "I did not hear any signal, whistle, or bell." On cross-examination, he said: "I was not paying particular attention to the whistle and bell. Had no occasion, that I knew of, particularly." Virgil Wells and his brother were driving with a team about half a mile north of the crossing, saw the train come around the curve, and testified: "We did not hear the train whistle or ring any bell." On cross-examination he said: "I did not hear whistle or bell. They might have sounded. I did not hear them. That is as much as I can say about it." Cephas Wells was with the last witness at the time. He testified: "I saw the train a minute or two,-a second or two. I did not hear it whistle or ring. We were within hearing distance. I did not notice any indication of a whistle, by a puff of steam or anything. I was watching it as it rounded the curve." Cross-examination: "I wasn't paying any attention to see if the whistle or bell sounded. I wasn't interested. All I can say on that subject is, I didn't hear it." Timothy Fee was a farmer whose house was about 40 rods west of the highway, and 30 rods south of the railroad. He was in his field west of his house, cutting corn. He said: "I did not notice the train when it passed. I did not hear it whistle or ring. It is a general occurrence for trains to pass there every day. I paid no attention to the like. I was within hearing distance, but I did not hear it." Cross-examination: "I paid no attention to the train. I might have seen it, but did not remark it. I can't say I saw it. I don't remember whether I did or not. I won't swear it did not ring or whistle, either. I did not hear it to draw my attention. Trains pass and repass so frequently I pay no attention, unless they whistle to drive the stock off." Justus Berry lived 80 rods north of the crossing. From his house the railroad is visible from the curve to the crossing. He was at work in his field west of the house, and saw the train just as it came out of the curve. He said: "I can't say positively whether it whistled or rung, or either. I can always hear them plain, and usually note it; but I can't say, in regard to that special train, whether it did or didn't. I don't remember hearing it. I did when they got down to the crossing. I heard them toot the alarm. I thought it was cattle. They were then behind the wood pile, very close to the crossing, I should judge." The above is all the evidence, on the part of the plaintiff, on the subject of signals.

The engineer of the train testified positively that he sounded the whistle for the crossing. The fireman and conductor also testified that the whistle was blown. The conductor testified that the train was behind time; that he had passengers for Grand Rapids. Was anxious to make the connection at Reed City, and was listening for the sound of the whistle. The bell was rung automatically, by air; and the brakeman testified it was last started at Chase, seven miles west that it rung continuously from then till the time of the accident; and that he stopped it after the accident. The engineer also testified that the bell was ringing. Joseph Finsterwald was at the depot in Reed City, waiting for this train. He testified that while standing upon the platform he heard the crossing whistle; that at the time it whistled he was walking with another man to the west side of the depot to get a cigar; that on hearing the whistle for the crossing he remarked to his companion that they would not have time to get the cigar; that his companion, who was one of the employes of the depot, replied that they would have time, as the train stopped a few minutes. They got the cigar, and on their return saw the train standing about half a mile up the track. Nathaniel Clark, a resident of Reed City, was coming towards the south, on this same road, about 80 rods north of the crossing. He heard the crossing whistle,-two whistles. Shortly after that he heard the whistle again. He was then going up a grade in the road, and the crossing was hidden from his view. On reaching the top of the grade, he saw the train backing up. He testified: "I know, by sound, the first whistle I heard was for Walker's crossing. The next would be about the curve west of the highway. I am positive I heard the whistle, and also heard the bell ring." Augustus Roberts lived about a hundred rods south of the crossing. Was in his field, sowing grain, and heard a whistle. He said: "It seemed the usual short whistle, and I did not pay any attention to it. It was a locomotive whistle for the crossing." Afterwards, he saw the train backing up. Samuel Wolfe is a farmer, and has lived in the vicinity 21 years. He was in the smoking car of the train. He testified that he had been noticing the whistles for several crossings west of this one. He heard the whistle for this crossing. He wanted to take the train north at Reed City, and...