Stone v. Chicago & W.M. Ry. Co.

• Decision Date: 05 May 1887
• Citation: 33 N.W. 24,66 Mich. 76
• Parties: STONE v. CHICAGO & W.M. RY. CO.
• Court: Michigan Supreme Court

33 N.W. 24

66 Mich. 76

STONE v. CHICAGO & W.M. RY. CO.

Supreme Court of Michigan

May 5, 1887

Error to Ottawa.

George A. Farr, for plaintiff.

Smith Nims, Hoyt & Erwin, for defendant and appellant.

MORSE J.

On the ninth day of January, the plaintiff, then pregnant, was a passenger upon defendant's road. She resided at Bushkill a station on said road, in the county of Ottawa. She testifies that she was about six months advanced in her pregnancy, and had been that day, with other ladies, to West Olive to do some trading. When the train reached Bushkill, on her return she was sitting towards the rear end of the car. The ladies with her, being in the front end, got off before she did. She passed through the car, and upon the front platform of the same, to alight. She had a market basket with groceries, in one hand, and a broom in the other. The brakeman reached up, and took hold of her hand, and about the time he did so the train started up. She stepped no further; but the starting of the train, combined with the pulling of the brakeman, jerked her off the car upon the ground upon her knees in the snow. She testified, further, upon cross-examination, that she had stepped down upon the first step before the brakeman took hold of her hand, and that she first struck upon her feet, and then fell upon her knees. She felt nothing, at the time of falling, except a "wrench in her back." She got up, and went to the house, and claims it hurt her from that time until the next morning. "Then it kind of died away, and I supposed it was all right; that it would come back no more; and it went on that day, and all that night, until Wednesday morning; and Mr. Stone was at home then, and asked me if I was able for him to go away, and I told him, 'yes; I was all right.' I felt nothing then, and he went to Johnsville. He had been gone some half an hour, I guess, when my pains returned again, and I was taken with flowing, and at ten o'clock a miscarriage took place."

It was claimed by the plaintiff that the fall from the car was occasioned by the negligence of the defendant in not stopping its train for a sufficient length of time to allow her to descend in safety, and the sudden starting of the cars while with due care she was attempting to alight therefrom, and that the miscarriage was the result of such fall, and therefore the defendant was liable in damages therefor. It does not seem to be seriously disputed by the defendant but that the fall, such as it was, was the result of the defendant's negligence, and without the fault of the plaintiff. But it is strenuously contended that the miscarriage could not be the result of the fall, and that the evidence shows beyond cavil that the foetus was dead before the accident. The company also relied upon a settlement made by its agents with the plaintiff. The plaintiff brought suit in the circuit court for Ottawa county, and upon the second trial of the cause recovered a judgment in the sum of $500. The errors assigned in this court all relate to the charge of the circuit judge to the jury.

The counsel for the defendant requested the court to direct a verdict in favor of the company. This was refused. They also requested an instruction that "the medical expert testimony shows that the condition of the foetus, at the time of delivery, as described by the witness Mrs. Peck, it being delivered in the unbroken sack on Wednesday, and being partly macerated, and having on it discolored spots, was such that death must have ensued prior to the accident of Monday, and that the death of said foetus was not occasioned by said accident." This instruction was also refused. The defendant further assigns error as follows: "In that the court instructed the jury: 'If, however, the jury find from the evidence that the plaintiff had been left alone for several days with three small children,--one a baby, who had been sick for several days,--and that the plaintiff had been obliged to watch for several nights, prior to the settlement, by reason of the sickness of her babe, and that upon the day of the settlement the plaintiff was suffering from headache, and was so suffering at the time of the alleged settlement, and that the defendant, acting through Harris acting for it, by his statements to her, made and effected a settlement, induced her to believe that it would be disgraceful to appear in court in such matters, or that she would be disgraced if she did appear in court, and that she would get nothing in the end; and if, from her condition at the time, she was unable to decide intelligently for herself, or believed such statements, and was induced thereby to make the settlement, and would not have made it without,--you have the right to consider these matters; and if the plaintiffs did not in fact give her consent to the settlement from her incapacity to consent, or was induced to consent by the misrepresentations of the defendant's agents, knowingly made, and knowingly false on their part, and made to induce the plaintiff to settle, you would be justified in finding that the settlement was not the voluntary act of the plaintiff, and not binding upon her.' (4) in that the court instructed the jury as follows: 'And if you find from the facts that the settlement was at once repudiated, and the money and due-bill returned, it will constitute no bar to this action.' (5) In that the court instructed the jury as follows: 'In short, that evidence preponderates in a given case which produced conviction of its truth upon the minds of the jury over and above all evidence opposing that upon the same point. In this case you are to take into consideration the testimony of the plaintiff, the circumstances as detailed by her; you are also to take into consideration the testimony on the part of the defendant,--the testimony of the physicians; and if, from the whole testimony in the case, you are satisfied by a preponderance of evidence that this miscarriage was the result of the negligent act of the defendant, and that that was occasioned without any negligence upon the part of the plaintiff in the case, then she would be entitled to recover, so far as this branch of the case is concerned; that is, entitled to recover for that injury.' "

In support of the two requests of defendant, its counsel contend in this court--First, there was no evidence from which it could be found that the death of the foetus, and subsequent suffering and miscarriage by the plaintiff were the result of the accident in question; and, second, that the evidence of the plaintiff shows that she settled with the defendant because she was sick and in straitened circumstances, and wanted the money for the necessities of herself and children, and for no other reason, and that such settlement was voluntary, and without fraud upon the part of the defendant, and is binding upon her.

The second request was rightly refused, for the reason that neither the evidence of Mrs. Peck, nor any other person who saw the child after its delivery, disclosed any maceration of the foetus. Indeed, the contrary was shown by all the testimony.

The errors alleged are really...