46 Mich. 504 | Mich. | 1881
. "While the witnesses do not fully agree upon the facts, yet in the view which we are compelled to take, the dispute becomes immaterial. The court charged the jury in substance and effect, that if they found the facts to be as testified to by the defendant’s witnesses, the plaintiff coidd not recover, and the instructions given, as to the right of the company to a clear track, and the boy being a trespasser, that it could only be held liable in case there was gross and wanton negligence on its part, such negligence as would indicate an indifference to the safety of the boy, were undoubtedly correct. The important question in the case as submitted is whether the court should not have charged the jury, as requested, that under the evidence the plaintiff could not recover.
Taking the testimony of the boy, and accepting it as true in every respect, and there is no evidence in the case more favorable to the plaintiff, and it fails to show, or tend to show, that the engineer knew or had reason to know that . he was there at all, and consequently there could have been no negligence on his part in starting the engine. Neither does the boy’s evidence tend to show that the fireman knew or had reason to suppose, that'he had fallen down, or was in any danger of being run over or injured — and certainly there is nothing in the whole ease tending to show that any of the defendant’s servants were wanton or willful in their conduct, or indicating a degree of indifference on their part as to the safety of the boy. Even should it be conceded that negligence on the part of the fireman would render the
It is not claimed that the boy would have been injured had he not, in some unaccountable way, fallen down, but there was nothing in his age, appearance, or knowledge of trains, or in the height of the step upon which he was .standing from the track, to indicate or lead any person to suppose that he would fall. Falling under such circumstances would be an exception and not the rule, and cannot therefore be made the foundation for a liability against the •company without proof of actual knowledge, which is wholly lacking in the present case.
The evidence is clear that the locomotive was in all other respects properly managed and under complete control of the engineer at the time of the accident, so that no charge •of carelessness can arise thereon. We need not therefore dispose of this case upon any mere question of pleading, or because of any variance between the allegations in the declaration and the proofs, or whether the negligence of the fireman alone would be ■ sufficient to charge the company. The evidence is all set forth in the record and it fails to indicate that degree of negligence, upon the part of any •servant of the company, necessary to create a liability.
The evidence does show the boy to have been a trespasser ; that he was possessed of more than average intelligence for one of his age; he knew that he had no right there, and repeatedly had been ordered away on previous occasions, and warned by his parents against going on the track or in places of danger; that when ordered off; he would have escaped all injury but that he stumbled and fell, which was unknown to and could not have been anticipated by any person upon or in charge of the locomotive. In other words the injury resulted from an accidental fall •of the boy and without any carelessness or negligence of the company’s servants, and the jury should have been
The judgment must be reversed, with costs, and a new trial ordered.