Trudell v. Grand Trunk R. Co.

• Decision Date: 27 February 1901
• Citation: 85 N.W. 250,126 Mich. 73
• Court: Michigan Supreme Court
• Parties: TRUDELL v. GRAND TRUNK RY. CO.

85 N.W. 250

126 Mich. 73

TRUDELL v. GRAND TRUNK RY. CO.

Supreme Court of Michigan

February 27, 1901

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by Elizabeth Trudell, as administratrix of the estate of William Trudell, deceased, against the Grand Trunk Railway Company of Canada. From a judgment in favor of plaintiff defendant brings error. Reversed.

Geer & Williams (E. W. Meddaugh, of counsel), for appellant.

William Stacey (Frank C. Cook, of counsel), for appellee.

LONG J.

This action is brought by the plaintiff, as administratrix of the estate of William Trudell, deceased, to recover damages for injuries resulting in the death of the latter, a boy 7 years and 4 months old at the time of the injury. He was killed about 3 o'clock on Sunday afternoon, upon defendant's track, about half way between Mack avenue and Hale street, in the city of Detroit. At the place where the injury occurred there were two main tracks and a side track, and at the time there was a Lake Shore train coming towards him from the south, on the east main track. He was standing, as plaintiff claims, in the center of the west main track, on which the Grand Trunk train which struck him was approaching from the north. The testimony is somewhat contradictory as to whether the boy was standing on this track when he was struck or was attempting to cross it. Herman Eckert, a boy about 14 years of age, testified that deceased had then been on that track about two minutes. He says he called the boy's attention to the fact that the Grand Trunk train was coming, and that young Trudell said 'That train is on the other track; it can't strike me;' that it was the Lake Shore train he said could not strike him; that the witness then said to him, 'Look out Willie, here it comes;' and then the boy turned round, and started to run, when he was struck. Anthony Karsnick, who saw the accident, was the only other witness examined by the plaintiff. He testified that Eckert called to the boy, and told him the train would strike him, and he said the train was on the other track; that Eckert called to him again to get off the track, and then he looked around, and started to run off. Both these boys testified substantially that the deceased knew enough to get out of the way of the train or he would be injured. Young Eckert testified that he was a goodsized boy for his age; that he went to school, and understood perfectly well that if a team or a car came along, and he stood in front of it, if he did not get out of the way he would be hurt. The testimony showed that these boys were standing on the siding, throwing stones and playing tag, and that just before the train came along deceased went upon the track of the defendant company, and stood there watching the Lake Shore train, or else he attempted to cross the defendant's track just before the train came along. There was some conflict in the evidence on this point. The engineer on the train testified: 'As near as I can recollect, after I passed Mack avenue this little boy ran right out from behind some cars in front of my engine. He could not have been more than fifteen feet from my engine when I first discovered him. I was keeping a close lookout, and at no time before or after I reached Mack avenue did I see him on the track.' The fireman testified to substantially the same thing. The plaintiff introduced some evidence tending to show that the defendant's train at the time was running at a rate of from 30 to 35 miles an hour. It appeared that the track was straight, and that an object as large as this boy could have been seen a long distance from the cab of the engine. The court below submitted to the jury, not only the question of the negligence of the deceased, but also the question of the defendant's negligence. The jury returned a verdict for the plaintiff for $500. Defendant brings error.

The court charged the jury on the question of the defendant's negligence as follows: 'It is incumbent, obviously, upon the plaintiff in this case, * * * to satisfy you, gentlemen of the jury, that the defendant has been negligent, and that the negligence of the defendant is the proximate cause of the injury, because on damages may be honestly rendered unless the injury of which the plaintiff in a case like this complains of comes directly from the negligence of the defendant. Now, you have heard the testimony in this case and if you shall find in this case that, at a point sufficient for the engineer to have come to a stop,--to have controlled his engine,--it became, or should have become, apparent to him that the child was not going to leave the track, then, and under those circumstances, I say, gentlemen of the jury, it became his duty to stop his engine. But, unless you find that to be the fact, then a verdict must be rendered for the defendant. It is for you to say, from all the evidence in the case. You have heard the testimony. You have heard the testimony of the boy, who stood, I think, upon the flat car, or in the immediate vicinity, who was one of the companions, who stated that the boy stood in the center of the track; that he called his attention to the fact that the Grand Trunk train was coming in, and he said, 'Oh, no; it is the Lake Shore train.' It is for you to say whether you believe that, from the evidence which has been submitted on that point, it was possible for the engineer of that train to have seen the boy at a sufficient distance to have stopped the train, and that a man exercising reasonable caution in his position would, under those circumstances, have stopped the train. If that is so, then I think that if he could have seen him at a sufficient distance to have stopped or controlled the train, and if he failed to observe that degree of care which other men under like circumstances would have observed, then, and under those circumstances, the company is guilty of negligence, but not otherwise. Now, you have heard the testimony, on the other hand, of the engineer. The engineer says that when he was coming along, at the rate which you may find that he was coming, the boy suddenly, at a short distance in front of the train, went upon the track. If that is so, that is obviously an end of the case, because, under those circumstances, no negligence could be predicated of those who were in the conduct of the engine. But I think, gentlemen of the jury, it becomes a question for you to...