Thomas v. Chicago & G.T. Ry. Co.

• Decision Date: 28 July 1891
• Citation: 49 N.W. 547,86 Mich. 496
• Parties: THOMAS v. CHICAGO & G. T. RY. CO.
• Court: Michigan Supreme Court

49 N.W. 547

86 Mich. 496

THOMAS v. CHICAGO & G. T. RY. CO.

Supreme Court of Michigan

July 28, 1891

Error to circuit court, Calhoun county; FRANK A. HOOKER, Judge.

Action for personal injuries by David Thomas against the Chicago &amp Grand Trunk Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

Geer & Williams, for appellant.

James M. Powers, for appellee.

CHAMPLIN C.J.

This action is brought to recover damages alleged to have been caused by defendant's negligence in running an engine over its road across a highway, and colliding with the plaintiff's wagon, by which he was thrown out and injured. The case was tried in the court below before a jury, and under the charge of the court the plaintiff had judgment, and the defendant brings the case into this court by writ of error. Eighteen errors are assigned; four of them relate to the rulings of the court upon the examination of witnesses.

The first error assigned is that the court erred in permitting plaintiff's witness E. M. Hoyt to answer the following question: "Question. Do you think you are sufficiently acquainted with the running of trains to be able to judge the rate of speed?" and in overruling the objection of defendant thereto. The witness Hoyt testified that he saw the engine pass through the village on the evening of the accident; that he had lived within eight or nine rods from the railroad track for eight years, and had frequently observed trains running by. He further states that "he was acquainted with the running of trains only just by them saying how fast they should run and such like." The question excepted to was then asked. The objection was stated to be that "he says he only knows the rate by what others may have said to him about it." The court directed the witness to answer. The witness answered: "I think I could tell pretty near what rate they was running. I think they was running along about fifty or sixty miles an hour." The witness gave the grounds upon which he based his estimate, which were his observing the movement of the trains as they passed by his place for several years, and the speed at which others said they were running. The jury were enabled to weight the testimony given by the witness from the grounds upon which he based his estimate. It was said in Railroad Co. v. Van Steinburg, 17 Mich. 99, that "any intelligent man who had been accustomed to observe moving objects would be able to express an opinion of some value upon it the first time he ever saw a train in motion. The opinion might not be so accurate and reliable as that of one who had been accustomed to observe, with timepiece in hand, the motion of an object of such size and momentum; but this would only go to the weight of the testimony, and not to its admissibility." We think the testimony was admissible, and its weight was for the jury.

The second exception is of like character as the first, and we think the testimony given by the witness Holden was admissible. He stated, "I have timed them lots of times."

The third assignment of error relates to a question asked of Dr. Erastus Berry on his cross-examination, viz.: "Question. Did you at that time hear him say anything as to having seen the engine before it struck him?" This question was objected to by the plaintiff's counsel as improper cross-examination. Defendant's counsel then added to the question: "If so, what did he say about that?" The court sustained the objection, and the defendant's counsel excepted. The question had reference to admissions or statements made by the plaintiff in the suit upon the evening after the accident, and the testimony should have been admitted.

The fourth assignment of error was based upon the testimony offered by the plaintiff showing the condition of the crossing at the time of the accident, which tended to show that the approaches to the crossing were not in a safe condition. We think there was no error in admitting this testimony.

The other errors relate to the refusal of the court to charge as requested by counsel for the defendant, and in charging upon his own motion. The first request to charge was as follows: "This being a country crossing, the question of speed is not material." In all cases where negligence is alleged on the part of the defendant, it is necessary and proper to take into consideration all the circumstances respecting the transaction, in order to ascertain whether the party alleged to have been guilty of negligence omitted to discharge some duty imposed upon him by the circumstances surrounding the transaction. This request was therefore properly refused, because the question of speed might be material in considering defendant's negligence, according as the circumstances might show that there was some neglect of duty on the part of the defendant in which the question of speed formed a material part; as, for instance, if the defendant failed to observe the requirements of the statute in giving signals when approaching the crossing, or approached such crossing without a head-light burning, the question of the speed at which it passed that point would be a material fact in determining the defendant's negligence.

Another request of the defendant is as follows: "That negligence is not to be presumed, but must be affirmatively proven by the party alleging it, and in the manner alleged in the declaration in the case; and in this case the burden of proof is upon the plaintiff to show that the defendant is entirely responsible for the injury complained of by reason of, and in consequence of, the neglect charged in the declaration, and that the plaintiff did not contribute towards it." This request may be considered in connection with the charge actually given by the circuit judge in which he instructed the jury that, "if any railroad company through its own carelessness or negligence runs a train without a head-light, it is liable for the consequences, because it is gross carelessness; and they can only be relieved from it in a case where there is gross carelessness on the part of the other party, which don't appear in this case." And again he instructed the jury: "If, by a preponderance of proof, you are satisfied that there was no head-light, then I instruct you that the plaintiff is entitled to recover." And again: "If there was no head-light upon the engine, then your verdict will have to be for the plaintiff." We think that the defendant's request should have been given. We have always required the party alleging negligence for which he seeks to recover for an injury caused thereby to state in his declaration the duty and the neglect of duty upon which he relies, and that he must be confined in his proof and recovery to the allegations in his declaration. He is not permitted to allege negligence under the circumstances stated in his declaration, and recover for negligence not stated. In the declaration in this case, the plaintiff sets out the duty of the defendant in each count, substantially as follows: "That it was the duty of the defendant, in approaching the crossing of the highway over which the plaintiff was driving, to use and employ reasonable care, caution, and diligence in running and driving said train of cars and steam locomotives along and over said railroad, and over and across said public highway at the crossing aforesaid, and to give due notice and warning of the approach of any such train of cars or steam locomotives to all persons passing along and over said public highway towards and over said crossing, by sounding the whistle of said steam locomotive twice sharply at least forty rods before reaching the crossing of said railroad and said public highway as aforesaid, and after the sounding of said whistle to keep the bell of said steam locomotive ringing continuously until said crossing should be passed by said steam locomotive; so that all persons lawfully passing or repassing along and over said highway and railroad crossing might have due warning of the approach of any such train of cars or steam locomotive along and over said railroad crossing." In some of the counts of his declaration there is added to the duties already stated the further duty "to keep proper and sufficient light upon all such steam locomotives as shall be run by said defendant over its said railroad after dark;" and he alleges, as a neglect to observe the duty stated, that on the 18th of January, 1889, at about the hour of 7 o'clock in the evening, while the plaintiff, together with his wife, Margaret, and his daughter, Sarah, were approaching said crossing in said highway from a south-westerly direction, and going in a north-easterly direction, with all...