Sosnofski v. Lake Shore & M.S. Ry. Co.

• Decision Date: 08 July 1903
• Citation: 134 Mich. 72,95 N.W. 1077
• Parties: SOSNOFSKI v. LAKE SHORE & M. S. RY. CO.
• Court: Michigan Supreme Court

95 N.W. 1077

134 Mich. 72

SOSNOFSKI v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

July 8, 1903

Error to Circuit Court, Ingham County; Howard Wiest, Judge.

Action by Charlotte Sosnofski against the Lake Shore & Michigan Southern Railway Company. There was a judgment for defendant and plaintiff brings error. Affirmed.

John J. Zimmer (Frank S. Porter, of counsel), for appellant.

C. E Weaver, for appellee.

CARPENTER J.

On the 30th of April, 1900, defendant was repairing its track at the intersection of its railway and Franklin street, in North Lansing. While plaintiff was walking on said street across said track, between noon and 1 p. m. of said day, a steel rail being handled by defendant's employ�s rolled on her foot, and crushed the great toe. She brought this suit to recover damages.

Plaintiff's testimony tended to prove that no barriers were placed where the repairs were being made. When she was injured she was returning home from the grocery store. On her way to the store she had passed over the track at this place, and had noticed that some of the planks and rails were taken up. On her return she observed nothing to indicate danger, and was not warned until the very instant she was injured. Defendant's testimony tended to prove that the place was guarded by barriers, and that the workmen handling the rail did not observe plaintiff until too late to prevent the injury. The issue was submitted to the jury who found a verdict for the defendant. Various errors are assigned, all but one of which relate to the charge of the court. We will consider such of these as, in our judgment deserve discussion.

The court charged the jury: 'There is no evidence in this case that will justify the jury in finding that the workmen were guilty of wanton or willful negligence in moving the rail,' and that plaintiff must prove herself free from having contributed toward the injury. The claim is made that the evidence warranted the jury in finding that defendant's employ�s were guilty of such negligence as to make defendant responsible, notwithstanding plaintiff's own negligence. We are of the opinion that the evidence does not justify this claim. To justify it, the evidence must warrant the inference that defendant's employ�s discovered, or by the exercise of due care should have discovered, plaintiff in a situation where due care on her part would not, and due care on their part would, save her from injury. See Richter v. Harper, 95 Mich. at p. 225, 54 N.W. 768. No such inference could be drawn from the testimony. Plaintiff herself was present on the scene as an actor, possessing the ability and charged with the duty of exercising due care for her own safety. She possessed this power, and was under this obligation, up to the very moment of her injury.

Error is assigned because the court charged the jury: 'If she saw evidences of repairs being made at that point by the railroad, then she is bound to be held to have had her attention challenged thereby to the fact, and she was bound to observe whether the repairs interfered with the passage of persons at that point across the track. If she saw workmen moving a rail along the walk and rolling it into place in the track of defendant, it was her duty to avoid a danger that would have been apparent to a person of ordinary caution and prudence. * * * If there was no one at work, what caused the rail to fall upon the plaintiff's toe? If persons were working, moving the rail, did she see them? If she did not ought she, by the exercise of the care and caution of an ordinary prudent person in passing along the street, and about to cross a railway track, to have seen them? If so, then she was bound to pay some heed to what was being done, and, if she paid no heed, and was injured, where a person of...