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

• Decision Date: 04 October 1892
• Citation: 53 N.W. 216,93 Mich. 150
• Parties: THAYER v. FLINT & P. M. R. CO.
• Court: Michigan Supreme Court

53 N.W. 216

93 Mich. 150

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

Supreme Court of Michigan

October 4, 1892

Error to circuit court, Sanilac county; WATSON BEACH, Judge.

Action by Ida M. Thayer against the Flint & Pere Marquette Railroad Company for personal injuries. From a judgment for plaintiff defendant brings error. Affirmed.

Wm. L. Webber, for appellant.

McGinley & Durning, (S.W. Vance, of counsel,) for appellee.

MCGRATH J.

Plaintiff's horse was frightened by three sharp whistles from a locomotive when within from 30 to 50 feet from defendant's tracks, on a narrow approach on a highway known as the "O'Hara Highway," and she was thrown out of her buggy down an embankment. The highway runs east and west, and crosses the tracks over a fill between two cuts, one about 20 rods south of the highway, and the other from 40 to 80 rods north. Both cuts are deep enough to hide an approaching train. The grade from the crossing north to the cut rises about 18 feet, and between the cuts the grade is raised from 3 to 6 feet above the adjoining lands. At the crossing, the railroad track is about 6 feet above the former grade of the highway. Plaintiff appears to have stopped twice, and looked and listened, and did not observe the train until within about 30 feet of the railroad track, whereupon she backed away from the tracks about the length of the buggy, and stopped. The train came from the north, and when from 24 to 26 rods north of the highway, the engineer gave the three whistles, causing the horse to rear and plunge over the embankment. The railroad was originally constructed in 1880 by the Port Huron & Northwestern Railroad Company. Defendant subsequently purchased the road, and was operating it at the time of plaintiff's injury, January 6, 1889.

The declaration consists of a single count, which contains the following allegations of negligence: "And the plaintiff alleges that the defendant was negligent and careless in the following particulars, to wit: First. That the defendant did not, nor did its predecessor, restore the highway aforesaid, as near as it might be, to its former state or condition, but, on the contrary raised the same twenty feet and, on the top or crest thereof, left only a narrow driveway, about five feet wide, not sufficient to enable a horse and buggy to turn without danger, and on both sides thereof constructed and maintained deep ditches, without guards of any kind, but sharp slopes from the top to the bottom, thereby making an attempt to drive over or turn upon said road extremely perilous and dangerous. And the plaintiff further alleges that at the highway crossing, about one mile north of said O'Hara highway, it became and was the duty of the defendant, in operating the special train aforesaid, to blow a whistle, but the defendant neglected so to do; and by reason of such neglect this plaintiff, who was driving on said O'Hara highway, and who would have heard such whistle, did not hear the same, and therefore had no warning that such special train was approaching until it came too near for her to avoid the injury aforesaid, she being unable to see the approaching of said train by reason of the care required, and the management of her horse, and a turn in said road that prevented such train being in sight, and because of the neglect of the defendant or its agents or servants to blow the whistle aforesaid, or to blow any whistle when approaching said crossing at the distance required by law. And the plaintiff alleges that the defendant was also negligent in the following particulars, to wit: (1) In its failure to restore said O'Hara highway to its former condition, and to keep the same in repair. (2) In constructing the approaches upon said O'Hara highway, the track was so high and so narrow that travel thereon was extremely dangerous. (3) In the failure of the defendant to blow a whistle or ring a bell at the crossing north of the O'Hara highway. (4) In the failure of the defendant to blow a whistle at least 40 rods before said O'Hara crossing was reached, or to ring the bell continuously, until such crossing was passed. (5) In the careless and negligent acts of the engineer or manager of the engine drawing said train, in blowing a shrill whistle 50 feet from such crossing, thereby frightening the plaintiff's horse. (6) In the fact that said train was being run at a speed of 40 miles an hour, in such a negligent and careless manner. * * * (7) In the neglect of the defendant or its predecessor to put up or maintain guards on said road to save vehicles or animals from being overturned or thrown into the ditches. (8) In the construction of a deep ditch on each side of the highway. * * * (9) In constructing the approaches by excavating deep ditches on each side of the road. * * * (10) That the engineer, or person who managed the engine, operating the special train on the day and at the time aforesaid, was incompetent and unskillful, and was careless and negligent in the conduct of his business, and in the running of said train, by reason of want of experience and of general unfitness, by reason of which, in the conduct of such train, he neglected to properly run the same, and...