107 Mich. 511 | Mich. | 1895
Lead Opinion
Plaintiff’s intestate, who was 12 years of age, and another lad, who was 16 years of age, were killed while on the highway in a top buggy at a railroad crossing. Both highway and railroad way ran in the same general direction for some distance east and west from Comstock station. The crossing is about one mile west from the station. Both railroad and highway ran parallel, in a northwesterly direction, from the station to the crossing in question. The railroad way then curves to the south, crossing the highway, and running on the south side thereof. The boys were driving west, and the engine evidently picked up the buggy from the rear thereof. Both highway and railway are in cuts from the crossing easterly for some 600 feet. Plaintiff’s testimony tended to show that the embankment of earth between the highway and the tracks was between 4 and 5 feet above the bed of the highway for some distance east of the crossing; that on the crest of this embankment the
The testimony was conflicting relative to the giving of the crossing signal, and the difficulty in observing the approaching train, and the claim is made that the testimony was sufficient to overcome the presumptions which ordinarily obtain in such cas.e, as to the observance of ordinary care on the part of the boys. It is insisted that the statements of witnesses that they did not hear the whistle ought not to be considered, where there is positive proof that the whistle was actually given. There was a
“ ‘The mere fact that parties testify that they did not hear the whistle or bell — one or both — is not conclusive proof that the whistle was not sounded or the bell rung. The testimony of any person positive as to what he saw or heard is ordinarily of greater value than testimony of any number of persons who did not see or hear, although such, persons might have seen or heard, had their attention been attracted to the spot or thing. One whose duty it is to look out and observe may be much more likely to see and hear and know what was being done and taking place than any number of persons who are neither paying attention nor required to see or hear.’ That instruction, gentlemen, is correct, but it is also true that the whole matter is for your consideration and your determination. While it is ordinarily true, as stated in this instruction, that the testimony of one who says that a certain thing was done, and that he observed it, is of greater value than of other people who say it was not done, and who may have had equal means of observation, yet that is subject to this limitation: that the jury are to take all the facts and circumstances into consideration. They are to take into consideration the credibility of the witnesses. They are to take into consideration their means of observation, their likelihood of remembering. And so no other rule can be given a jury, upon a matter of this kind, than that the whole testimony is for them, and they are to decide according to the fact.”
Counsel endeavor to demonstrate mathematically the ability of a person approaching such a crossing to see over the embankment, or over or through a fence of the character named; but there was evidence of other obstructions, and, at any point within two or three hundred feet of the rails, a party looking in the direction of the approaching train would be below the top of the fence, and would be looking easterly along the line of the fence and embankment, and not northerly, or at right angles with the fence.
A witness says that he met the boys some distance west pf Comstock station, and about 2,100 feet east of the crossing; that one of the boys asked witness if there was a train coming, and he said to them, “Yes; it is right up on top of the hill;” that one of the boys then said, “We will have to hustle, if we make the crossing;” that they started the horse upon a trot; that at this time one of the boys was down on his knees in the bottom of the buggy, with his face to the east,“playing or fooling in some way.” The witness says he referred to the west-bound train, but it does not appear that he communicated that fact to the boys. However that may be, the train from the west came immediately after this interview; and two witnesses say that they saw the boys after that interview, that their horse was on a walk, and that the boys were on the buggy
We find no error, and the judgment is affirmed.
Dissenting Opinion
(dissenting). I think the judgment should be reversed, for the reason that the question to the witness Anderson, “Could you have heard the whistle from where you stood, had it been blown?” called for a conclusion in relation to a question which should have been left to the jury, upon the circumstances shown.