Starbard v. Detroit, G.H. & M.R. Co.

• Decision Date: 22 November 1899
• Parties: STARBARD v. DETROIT, G. H. & M. RY. CO.
• Court: Michigan Supreme Court

80 N.W. 878

122 Mich. 23

STARBARD v. DETROIT, G. H. & M. RY. CO.

Supreme Court of Michigan

November 22, 1899

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action by Jennie M. Starbard, administratrix, etc., against the Detroit, Grand Haven & Milwaukee Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

E. W Meddaugh (Geer & Williams, of counsel), for appellant.

John M Mathewson (Maher & Salsbury, of counsel), for appellee.

LONG J.

July 16, 1896, the deceased was struck and killed by a train on defendant's road. This action is brought to recover damages on the ground that defendant's servants were guilty of gross negligence in not giving him warning of the approach of the train. It appears that the deceased was walking on the defendant's tracks, about 12:30 p. m. of that day, near Lowell station. He lived a little east and south of where he was killed, had lived there about six years, and was familiar with the surroundings. He came upon the track near what was called the 'County Line Road,' and had walked west between the rails about 100 rods before he was struck. The track was straight, and he could easily have seen the approaching train, if he had looked. He was in full possession of all his faculties, and an able-bodied man. The engineer testified that he blew the whistle for the County Line crossing about 80 rods east of it; that he blew the whistle for the Lowell station as he passed over the County Line road, which is a trifle over a mile east of the station, and continued to ring the bell that, soon after crossing the County Line road, he saw deceased between the rails, walking in a westerly direction that, when the train was within about 300 feet of him, he blew the alarm whistle, and deceased stepped to the right side of the track, and he supposed he would step off, and for this reason did not slacken the speed of the train; that, when the train was within about 10 rods of deceased, he suddenly stepped to the left, and he (the engineer) immediately shut off steam and applied the air brakes and stopped the train, but that it had gone over deceased before the train could be stopped; that he did not see deceased look towards the approaching train, but did see him step to the right side of the track, and, from his movement, supposed he was aware of its approach, and that he would step off in time to avoid injury.

This testimony was fully corroborated by the fireman. The only witnesses who were examined on the part of the plaintiff in relation to the giving of the signals, and when they were given, were Wheeler Hull, Claude Westbrook, and Albert Bell. Mr. Hull testified that he heard the signals given for the County Line crossing, which was about 130 rods east of where he then was,--at a barn, doctoring a horse. He saw deceased on the track just east of where he was struck. Witness also heard the danger signals, and saw the train go by. His back was towards the train, and he was unable to locate where the train was when the alarm whistles were given; and he says he supposed deceased had stepped off the track until the train had stopped. Witness said further: 'I did not hear them give the station signal. I was not paying attention. I did not hear it at all. I do not say that they did not give it.' Mr. Westbrook testified that he saw deceased come onto the railroad track at the county line, and he observed him walking down the track towards him; that witness heard the signals given for the County Line crossing; that he also heard the danger signals, but could not state how far the engine was from deceased when they were given; that he did not hear the station signal; that a portion of the time he was watching Mr. Bell, who was coming across the field. Witness testified further: 'I would be something like fifty-six or fifty-seven rods west of King's crossing, looking at the train. I could not tell accurately how far the train was east. I listened when it gave those signals. I went up to the engineer, and told him I thought he made noise enough then. I meant by that I thought the deceased ought to have got off the track. I referred to the alarm whistles.' Mr. Bell testified: 'I did not hear the train whistle after it passed the county line, not until it blew the danger whistle, when it was just a few feet from him. It blew the danger whistle when it was just a few feet from him. * * * The first thing that attracted our attention was the alarm whistle. The train was then east quite a little way. After hearing the alarm whistle, we just looked up that way, and saw the man. It gave three or four sharp whistles, the same as for stock or anything on the track; * * * so that, not looking, I could not designate the distance between the man and the train at the time the whistles were given.' This last witness was examined at the coroner's inquest, and on the trial admitted that he there testified that he thought the train was four, five, or six rods from deceased when the alarm whistles were given. He was then asked: 'That was your best judgment at that time? A. Yes, sir. Q. And you think so now? A. Yes.'

Counsel for defendant, at the close of the testimony, asked the court to direct a verdict in favor of defendant. This was refused but the court directed the jury that the deceased was a trespasser on the defendant's right of way, and was negligent in his conduct, in walking on...