112 Mich. 304 | Mich. | 1897
In a proceeding to extend a city street across the appellant’s railroad in the city of Detroit, it was claimed on behalf of the defendant that the opening of said street would necessitate a flagman and gates. Counsel for the city argued, in substance, that the jury were authorized to act upon their opinions based upon their view of the premises, in the exclusion of the testimony, or, at all events, that they must be “satisfied beyond reasonable doubt that there is an actual present necessity for gates at the crossing.” The court instructed the jury that, if they “believed from the testimony that a gateman or flagman was necessary, the company should be awarded a sum which, at 6 per cent, interest, would produce an amount adequate to the payment of such expenses.” It is evident that the jury did not award compensation for this item, and the defendant asks a reversal of the case upon this ground. The undisputed testimony shows that a flagman was necessary at the place, and that a sum equal to the interest upon $6,000, at 6 per cent., would be required to pay the expense thereof. The court refused to grant a motion for new trial. The jury viewed the premises.
The question for us to consider is whether the jury were authorized to disregard the undisputed opinion evidence, and the undisputed testimony as to the situation, viz.: That there were three tracks, upon which 42 regular trains, besides special trains, run daily; that the view of the track is hidden by houses and a high fence in close proximity to the track; that it is a thickly-settled and populous locality; and that, at two other crossings of the streets next adjoining this one, gates and flagmen have been kept for a long time. Counsel for the city contends, in effect, that the conclusions of the jury should not be
We think the verdict and judgment of confirmation are erroneous, and they are therefore set aside, and the cause remanded for a new trial.