CHAMPLIN, J.
This
action is brought to recover damages for personal injuries
received by the plaintiff by reason of the alleged negligence
of defendant in not keeping a railroad crossing in repair. On
the twenty-first of July, 1884, defendant caused its track to
be repaired and raised at a crossing of a highway known as
the "Tupper Crossing," on what is called the
"Old Turnpike," between the village of Grand Blanc
and the city of Flint, in the township of Grand Blanc
Genesee county. The repair was made necessary on account of a
depression in the track at that place, and the work consisted
of raising the ties and rails, and placing ballast beneath
raising the track some four or five inches immediately at the
crossing, and gradually less in each direction. The work was
done by the section men under the personal supervision of the
section boss, Frank Dunn. They began in the morning at a
point about 10 rods south of the crossing, and raised the
track until they reached the crossing, and then tore up the
plank and raised the crossing. They also raised the track for
a distance of about 40-feet north of the crossing. The
direction of the railroad track at the crossing was about N
22 deg. W., and that of the "Old Turnpike" about N
40 deg. W., making the angle at the crossing quite acute.
Shortly
after 10 o'clock in the forenoon, the plaintiff, who
lived in the township of Grand Blanc, drove up from the south
to the crossing, with a horse attached to a light single
buggy, on his way over the "Old Turnpike" to the
city of Flint. At that time (according to his testimony) he
found five or six men at work on the crossing. The planks
were taken up and the men had a long lever under the rails
raising the track. In order to loosen the
ties, the dirt near them had been removed and thrown outside
the rails into the highway. The plaintiff got out of his
buggy, and led his horse safely over the track, and went on
to Flint, about seven miles north. After transacting his
business at Flint, the plaintiff started back to Grand Blanc
shortly after 1 o'clock in the afternoon, and drove
directly back the same way in which he came, arriving at the
crossing in question about 2 o'clock. At that time (as he
says in his testimony) he found the men tamping the ties
which had been raised north of the crossing. The planks of
the crossing were still removed, and the rails and ties were
raised two or three inches more than they were when he
crossed before, making them about three or four inches above
the natural surface of the road-bed, and leaving the ties out
of the ground, or exposed, about half of the tie. Only a
portion of the dirt had been replaced under the ties, and the
tops of the rails were about seven or eight inches above the
top of the dirt inside the rails, and the dirt was a little
lower on the outside.
The
plaintiff on his cross-examination testified as follows:
"The mare is rather of a nervous temperament--quick. I
considered her entirely manageable.
"Question.
Was she hard-bitted? Answer. Well, I had considered her so
previous to that time, or about that time. I was about four
rods from the railroad track when I got out of the buggy; I
began to descend the grade in the road. I got out because I
knew from experience that vehicles were liable to slide on
those rails. I have been turned over on that crossing with
the planks in, several years before, and that is the reason I
got out and led my horse over. On my way home I did not speak
to Frank Dunn or any of the men until after the accident. I
saw them before I got out of the buggy. They were near
enough, so I could have called them. I did not call Frank and
ask him to put in some plank so I could get over, because I
didn't consider it was necessary. I asked him in the
morning if I could get over there with safety, and he told me
he thought I could. Others had crossed. I had my own
experience going down to guide me coming back. Coming to
Flint, I went over substantially the same angle that I
crossed going back, as near as may be. The wheels did not
slide when I was coming towards Flint.
"Q. Then when you first got out of your
buggy, as I understand, back about four rods from the track
with your right hand behind the chin of the horse, or behind
the lower jaw of the horse, you took both reins in your right
hand and walked forward, leading your horse? A. I think I
did. I think--I am sure I did hold.
"Q.
Your left hand hanging loose at the time? A. Yes, sir. I
walked down to the rail at a natural walk. When I came so
that my wheels were about to strike the rail I turned and
looked back to see how they were going to strike. I still had
hold with my right hand. When I looked back to see how the
wheels were going to strike, the forward wheels cleared the
west rail all right. I could not say whether the hind wheels
had got over before the forward wheels struck the next rail.
I could not tell the position of the hind wheels, but I saw
the front wheels between the rails. I did not see the front
wheels when they struck the second rail. I was looking
directly at the mare at that time. She had not appeared to be
frightened or nervous at all up to this time. She was clear
of the rail at that time. I don't know that I could swear
positively whether it was the hind wheel or the front wheel
that slid, but from the position of the shaft against my
side, and the sound, I should say it was the forward wheel. I
had no time then to turn. In fact, I could not look back
after she made the first spring.
"Q.
When the wheels slid on the rail it made a creaking or
squealing sound? A. Yes, sir; a grating.
"Q.
Sharp sound? A. Yes, sir. Like the rubbing of one piece of
metal on another.
"Q.
It was that sound that frightened the mare? A. That, together
with the shaft striking her flank--the shafts or thills
striking her flank.
"Q.
If she had been going pretty slowly over there, the shaft
could not have struck her flank with any particular force? A.
It would have made a pretty good pressure against her side.
The shafts did not come against her so when the wheels
crossed the first rail, because the wheels did not slide
there. It was the sliding that brought the shaft against her.
I held up my speed in crossing over the rail. I recollect
distinctly of holding up as the forward wheel struck the
first rail, but whether I had increased in speed before I
struck the other rail, I cannot say.
"Q. Didn't you hold your horse back, so
that as the wheels struck the rail it would rise slowly over
it and come down slowly, without coming down with a ca-chunk?
A. I didn't think of that point. My object--I held up a
little as it struck the first rail, to prevent the sliding.
"Q.
And then it didn't occur to you as to the second rail as
it had at the
first? A. No, sir. As I got the horse over I remember of
thinking that I was safe. When the wheels slid and the noise
was made the horse jumped; she jumped a little sideways from
me. I still held on with my right hand. The first spring she
made I grabbed with both hands, but soon after had to let go
with one hand to keep my position. I found I could not keep
my feet, and I put one arm over her neck--that was my right
arm. I did not do it at that time with a view of throwing
myself onto her back. I did that to keep my feet and keep
from being thrown down. I did not have hold of her mane; I
had my arm over her neck. She is a low mare. I made a
desperate attempt to stop her, and found that I was not
gaining or succeeding in stopping her--was not checking her
speed--and I then attempted to get upon her back, and I found
that I could not do that; and as I came down I struck the
ground with my feet, and made a desperate effort by throwing
my feet ahead as far as possible to check her; and at the
same time I calculated if I didn't check her that I had
got to fall, and would throw my head clear of the wheels. If
I had let go of her when she first jumped she would have
cleared me, but the buggy would not. That was my first
thought after the first spring.
"Q.
When she sprang a little from you, if you had made one step
backwards, away from the road, don't you think you would
have cleared the buggy? A. I should not want to chance it. I
did not figure out the position of the buggy at that time to
see whether it was sliding towards me or away from me. I know
now that it did certainly slide from me. I was on the
left-hand side of the horse. At the time of the slide, I had
hold of both bits with my right hand. Let me state one thing
that I supposed the buggy was turned over at that time, from
the sound and the position of the shafts--from the feeling to
me of the shafts as they slid against her body. I supposed
the buggy was tipped over towards me or towards the left-hand
side, which would have been the case had it tipped over
there. I was going south-east towards the village. The road
was at such an angle with the rails that it slid towards the
village; and in tipping...
