Thompson v. Toledo, A.A. & N.M.R. Co.

• Decision Date: 08 April 1892
• Citation: 91 Mich. 255,51 N.W. 995
• Parties: THOMPSON v. TOLEDO, A. A. & N.M. RY. CO.
• Court: Michigan Supreme Court

51 N.W. 995

91 Mich. 255

THOMPSON v. TOLEDO, A. A. & N.M. RY. CO.

Supreme Court of Michigan

April 8, 1892

Error to circuit court, Shiawassee county; WILLIAM NEWTON, Judge.

Action by Robert Thompson against the Toledo, Ann Arbor & North Michigan Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Lyon & Hackleman and T. W Whitney, for appellant.

A L. Chandler, (George R. Gold and S. S Miner, of counsel,) for appellee.

GRANT J.

Plaintiff at about 5 o'clock in the morning of September 26, 1889, while attempting to walk across the defendant's road at a street crossing in Vernon, a village of 800 inhabitants, was struck by a passing engine, and injured. Defendant's road runs parallel with the Detroit, Grand Haven & Milwaukee Railway, and at the point where the accident happened they are about 15 rods apart. Plaintiff was a young man, living about six miles from Vernon, and had come in with a party for the purpose of taking the 5 o'clock A. M. train over the Detroit, Grand Haven & Milwaukee Railway to attend the exposition in Detroit. The party left their teams at a stable, and went to the station. Finding no one there, they walked down Walnut street, to the first street north of the defendant's track. There the party stopped, while the plaintiff went to the house of the station agent. He did not find him at home, and as he came out on the steps he heard an engine whistle to the north and west, and, as he thought, half or three quarters of a mile away. Supposing this was the train he intended to take, he started on a run, and, finding that his party had gone, he continued to run, so as to overtake them, and reach the train; but he says he stopped running when about 60 or 70 feet from the track, and walked the rest of the way, until he was struck by the steps of the engine. Verdict and judgment were for the plaintiff.

1. The declaration contains but one count, in which are set forth the following concurring acts of negligence: "(1) In not blowing its whistle at the crossing, as provided by law; (2) in not ringing its bell, as provided by law; (3) in running its engine in the village of Vernon at a furious rate of speed, viz., sixty miles an hour; (4) in not keeping a watch on its engine, and a suitable person to warn persons at a public crossing of approaching trains and engines; (5) in permitting a building to remain on said railroad grounds, near to and adjacent to said railroad grounds, which obstructed the vision and hearing of persons crossing the road from the north; (6) in running its engine off schedule time, without giving warning to the public, and in not having a head-light on the engine; (7) in not having a signal board placed at the crossing, with the words 'Railroad Crossing' painted thereon, as required by law." The court, among other instructions, gave the following: "A railroad track is in itself a notice and warning of danger, and it is the duty of a person approaching to look and listen; and if, in this case, the jury find that from darkness and fog the sense of seeing could not be rendered available, the obligation on plaintiff was stronger to listen, and ascertain, before attempting to cross, whether a train was approaching; and, should the jury find the plaintiff neglected to do this, but approached the track without making any effort to see and listen to ascertain whether a train was coming, he did it at his own risk, and such conduct is in itself negligence, and would prevent the plaintiff recovering, and this, too, whether the defendant gave proper signals, such as blowing a whistle and ringing the bell. If the jury find as a matter of fact that said plaintiff had it in mind and intended to cross the T. & A. track in order to get to the D. & M. depot, he cannot be said to have been injured by defendant's failure to put up a caution board. So, too, if you find it was too dark for the plaintiff to have read thereon the cautionary signal. The defendant, under the undisputed facts in this case, as a matter of law was under no obligation to station a flagman at said crossing. The failure to station a flagman and maintain a caution board, as alleged in the declaration, are not material circumstances in this case. The greater the danger from the situation and time of day or night at which the danger occurs or exists, the greater becomes the duty of every one crossing the railroad track to exercise a higher and greater degree of due care to protect himself from danger and injury." These instructions correctly stated the law applicable to the case. But it is insisted by the defendant that plaintiff was, under his own evidence, guilty of contributory negligence, and that the court should have directed a verdict against him. The testimony, as is usual in this class of cases, as to the ringing of the bell, the head-light, the whistles, and the speed of the train, was conflicting. Had it been daylight, plaintiff unquestionably would have been guilty of contributory negligence. The testimony on his part was that it was dark and foggy; that he was looking and listening; that there was no head-light; no bell rung; and that the engine was running at a high rate of speed. The members of his party who had crossed the track testified that they...