83 Mich. 432 | Mich. | 1890
At Meridian station, in Ingham county, where the railroad runs nearly east and west, there is a highway crossing the track, running north and south. About 10 o’clock in the forenoon of July 7, 1888, an east-bound train that did did not stop at the station passed over the highway. A man named James Apsey was riding in a top buggy drawn by a single horse along the highway, coming from the south of the track towards the north. With him was his son, Willie, aged 11 years. They collided with tjie passing train, killing them both instantly. For the death of the son, the plaintiff, who is his mother, brings this action as administratrix of his estate.
The uncontradicted testimony of plaintiff shows that on the east side of the road stood the dwelling-house of one-Rorback, and that Mr. Apsey, tfie driver of the horse, on approaching the railroad track on that occasion, in passing north, followed the usually traveled and beaten
It is claimed on the part of plaintiff in the declaration in the case that the defendant was negligent, and that James Apsey, the driver of the horse, and his son, Willie Ray Apsey, were in the exercise of due care and caution, .and that the injury resulted without fault or negligence on their part. The negligence of the defendant alleged in the declaration consisted in not giving the statutory signals required upon approaching a highway crossing, the obstruction of the view by the embankment, and in running its cars at too great a rate of speed past a point where the view of the track and train was thus obstructed. It appears that the deceased, James Ajrsey, resided at or-near Meridian station, and was familiar with the highway crossing at that. point; and defendant claims that the testimony in the case is conclusive that James Apsey was guilty of contributory negligence, and that therefore the plaintiff was not, under the declaration, entitled to recover.
The first witness called who saw James Apsey and his son at or about the time of the accident was Archie Glosser. He was standing by the fence in the grain-field 15 or 20 rods west of the crossing. He saw Apsey and his son as they were driving towards the track. He says that they Avere looking up the track—west■—-as if they Avere looking for the train; that he watched them until they got out of his sight in a kind of a bank that was there, and that they dropped down into what is called a “ cut,” and that was the last he saw of them. He saw the train after they had disappeared from his sight, and heard the danger whistle sounded. They commenced sounding the alarm whistle at about the time they were at the switch, and sounded all the way down to the crossing. He did not remember at what gait Apsey was driving, and could not tell whether it was fast or slow. He says he could see Apsey until he got within 15 or 20 feet of the crossing, and after that he could not see him.
The next witness was Mary Jane Williams. At the time of the accident she resided at Meridian station, in the house known as the “Williams House.” It was situated on the south side of the railroad track, and fronted upon the highway, and faced east; the house itself standing a few feet south of defendant’s right of Avay. At the time of the accident she was sitting in a room in the wing part of the house, which stands at the north of the main building. She saw Apsey and his son Avhen they passed the house. She says they Avere not driving very fast, she thinks they were Avalking,—“just walking;” that Apsey and his son were looking to the west; that she heard the danger signal sound, and at that time they were right in
The next witness on the part of the plaintiff was Charles Slenou. He resided at Meridian, and was 18 years of age at the time of the trial. He was at the station at the time of the accident, July 7, 1888, and was loading a car with wood. The car stood at the west of the railroad crossing. He saw Apsey and his son approaching from the south. They were south of the track, and the train had not yet reached the crossing. They were at that time one or two lengths of the horse and buggy south of the crossing. The cars passed between the car in which he was and the point where he last saw Apsey and his son. The horse was going north. He saw the horse jump a little, sideways, and, after he had jumped, the back of the buggy was to him. He estimates the distance he was from the crossing at 35 to 40 rods.
The other witness for the plaintiff was Amey Carr. She resided at Meridian, and recollects the circumstances of the killing and death of Mr. Apsey and his son. She was standing in the south door of her father’s house, which is north of the railroad crossing, on the east side of the highway. She testifies that she saw Apsey and his son as they approached the crossing that day; saw the horse and vehicle; that it was not moving very fast, and was walking, as she thought. She did not know how far the horse was south of the track when she heard the danger signal given, but she testifies it was not very far; that the horse must have been on the bridge, or near that, and was going towards the track at the time; that she
. These were all the witnesses who testified as to the conduct of Apsey on behalf of the plaintiff. One other person saw the accident, and that was the engineer upon the train, Charles A. Bigelow. He testified that he had been a locomotive engineer for 17 years, and over. He was asked, upon cross-examination by plaintiff’s counsel,, what he did when he first saw these parties at Meridian that morning, when they were killed by his engine. He-testified that. he pulled the alarm whistle; that to the-best of his judgment he was at that time back from the crossing 300 feet; that when he first saw them, and gave this alarm, he thinks they were nearly opposite the fence-running east and west,—they might have been a little-further to the south of the fence; that he could see the carriage, and the man and boy in the carriage; that they Avere driving towards the track, and appeared to be looking towards him; that, at the time he saw them, they were going very fast; that the horse was running or trotting very much faster than a walk, but how much he could not state,—they Avere going very fast; that when he first saw them he gave the alarm by blasts of the whistle, he could not say how many times; that he was
This is all the testimony there is in the case bearing upon the contributory negligence of the deceased. If, as the plaintiff’s witnesses testify, the deceased, Mr. Apsey, the father, was driving upon that crossing upon a walk, and deliberately drove against the train at that gait, it would be such contributory negligence as would prevent recovery in this action; and if, on the contrary, he was driving his horse fast iflf an attempt to drive across the
The judgment is reversed, and a new trial granted.