142 Mich. 692 | Mich. | 1906
(after stating the facts). It was conclusively established that this car was a standard one, of the height and construction such as is in common use upon railroads. It was the standard three-step smoking car. There are also four-step smoking cars; but no such car had been in use upon this road, extending from Jackson to Saginaw, for three or four years.' The difference in height between a three-step and a four-step car is about eight inches. The court should have instructed the jury that the use of this car was not negligence.
2. Counsel for defendant insist that the existence of the hole, with the piece of cinder in the bottom, as described by plaintiff, was not negligence, citing Jackson v. City of Lansing, 121 Mich. 279. The high degree of care required of common carriers of passengers, in transporting them and in the construction and care of their vehicles for that purpose, is not required by the law in the construction and maintenance of its platforms and station grounds. Reasonable care to be determined by the surroundings, the situation, and the probable dangers, is the requirement of the law. 6 Cyc. p. 605; 3 Thompson on Negligence, § 2697; 5 Am. & Eng. Enc. Law (2d Ed.), p. 532; 26 Am. & Eng. Enc. Law (2d Ed.), p. 512; Hiatt v. Railway Co., 96 Iowa, 169; Finseth v. Railway Co., 32 Or. 1 (39 L. R. A. 517); Pennsylvania Co. v. Marion, 104 Ind. 239; Illinois Cent. R. Co. v. Hobbs, 58 Ill. App. 130; Mayor, etc., of New York v. Bailey, 2 Denio (N. Y.), 433; Collins v. Railway Co., 80 Mich. 390; McKone v. Railroad Co., 51 Mich. 601. Counsel for plaintiff concede this to be the rule. Réasonable care is a relative term, to be determined by the surroundings of each case, and the dangers to be apprehended and avoided. St. Louis, etc., R. Co. v. Barnett, 65 Ark. 255. The
3. It follows from what has already been said that the plaintiff was not as a matter of law guilty of contributory negligence in stepping as he did from the car. It was a question for the jury to determine from all the surrounding circumstances.
4. Defendant made a motion for a new trial, one of the grounds of which was that the verdict was against the overwhelming weight of the evidence. Whether the jury found the defendant guilty of negligence on account of the height of the steps of the car or the hole in the platform, with a chunk of cinder therein, it is impossible to determine. It is due to the intelligence of the jury to believe that they did not find that a hole such as that described by the plaintiff existed. The overwhelming weight of the evidence is against such claim. Plaintiff alone testified to its existence. ' It is significant that he did not allege in his declaration either the existence of the hole or of the
Other questions are raised, but as they are not likely to occur upon a new trial, should one be had, we deem it unnecessary to determine them.
Judgment reversed, and new trial ordered.