17 Mich. 99 | Mich. | 1868
Lead Opinion
Tbe action in the court below was brought by Yan Steinburgh to recover of the railroad company for injury done him by one of their engines at Holly station, on September 15, 1805. The plaintiff, it appears, was a hotel keeper at that place. The track passed between his house and the depot, and only about thirty feet therefrom. He heard the whistle of an approaching train when it called the station; started to cross over the track to the depot; was caught by the engine as it came up, and had one foot taken off, and the toe of another. The defendants insisted that the injury was attributable to his own carelessness; while he, on his part, claimed that the defendants were negligent and he. was not.
Thirty-eight exceptions appear in the record, a number, of which were not insisted upon on the argument; and will not be noticed here. Four of the others were assigned to rulings of the Circuit Judge, allowing persons not shown to be experts to testify to the rate of speed the engine was running at the time the accident occurred. Bach of those persons stood at the time upon the ground or the platform near the place of the accident, and saw the train pass. .Two of them had been a good deal accustomed to rajlroad traveling; the others were not shown to have had any special opportunity to judge of the speed of passing trains beyond that possessed by people generally.
The point to which the attention of the witnesses was directed was the speed of a passing object. The motion of-the train was to be compared to the motion of any other moving thing, with a view to obtaining the judgment of the witness as to its velocity. No question of science was involved, beyond what would have been, had the passing object been a man or a horse. It was not, therefore, a question for experts. Any intelligent man who had been accustomed to observe moving objects, would be able to express an opinion of some value upon it, the first time he
In order to establish the negligence of the defendants, the plaintiff sought to show that the velocity at which the train was moving at the time the accident occurred, was so great that it would have carried it considerably by the usual place of stopping; and having put in evidence to show the rate of speed, a witness was then asked, “At what rate of speed should the train have been running to stop at the usual stopping place?” This question was objected to, because the witness was not shown to be an expert. This question evidently stands upon a different ground from the last, and can only be answered by a person of experience in the running of trains and in checking their speed. I am inclined to think, however, that the witness had given evidence which showed that he had had such opportunities as entitled him to speak as an expert. He had been traveling as a mail agent regularly for two years on the cars, and unless greatly defective in observation or capacity, ought to be able to express an intelligent opinion. To constitute an expert, it can not be necessary that one should be connected with the management of the train. If he is in position to witness the result of the management, and to observe the effect when the means of checking the train are applied, he may be as competent to express a satisfactory opinion as
The plaintiff claimed the defendants did not ring their bell when approaching the station at the time of the accident; and this he insisted was negligence. Holly station is the point where the ■ Flint and Holly railroad connects with that of the defendants; and the train by which plaintiff was injured was .accustomed to switch off from its own road when near the station, and run up to the depot on the line of the Flint and Holly road, where it left cars to be taken by that company. The accident, therefore, was on the track of the last named road; and the plaintiff was allowed to prove, as having some bearing on the question of negligence, that the Flint and Holly company were in the habit of ringing their bell when running their trains over this part of their track. I have not been able to discover any sufficient reason for the admission of this evidence. It was suggested, on the argument, that, as the defendants were using the track of the Flint and Holly road, the plaintiff had a right to suppose they were running according .to the customs and employing the signals of that company; and that the testimony was material as bearing upon the question of the plaintiff’s negligence. It does not strike me, however, that the defendants were in any such position as they might be if they should run one of their trains over the road of another company. The track, at the point in question, only stood in-the place of a side track to these defendants, upon which they run their trains to leave cars, and then passed off again upon their own track. The plaintiff knew the manner of their using it, and could not be supposed, therefore, to have governed
I also think the judge erred in allowing witnesses to testify to what was said by by-standers, immediately after the accident, about the bell not having been rung when the train approached the station.
It is undoubtedly competent, when a disputed fact is in question, to allow a witness to state any circumstance occurring at the same time, and which had a tendency to fix the occúrrence upon his mind. The credit to be given to his recollection, will greatly depend upon the reasons which induced him to give particular attention to the facts concerning which he testifies. “The value of his recollection would depend entirely upon the degree of attention with which he observed the facts, and the reasons which operated upon his mind to excite that attention, and fix the facts in his memory.” — Per Ghristiancy, J. in Angell v. Rosenbury, 12 Mich. 257. And I think, also, that if immediately after an occurrence, an eye witness has the subject specially brought to his attention in such a manner as particularly to impress it upon his memory, while it is still fresh and vivid, it is competent for him, when the facts become material, in legal investigations, to state the circumstance then occurring, and which tended to make his recollection more distinct and particular than it would otherwise have been. If the attention of the witness is specially called to the subject while the transaction is going on, he will be more likely to observe with attention, as well
This rule, however, would be a very dangerous, one, if, under cover of it, hearsay testimony could be brought before the jury, as it seems to me, it was in this case. Thus, when the witness, S. H. Coon was on the stand, he was asked the question, which I think entirely proper, “Was your attention at the time called to the fact, whether or not the train came in without sounding the bell or whistle?” To which his reply was: “ It was talked of at the time, that the train came in without ringing the bell.” And, in reply to a similar question, George W. Coon says: “My attention was called to it; I heard some one say it was not rung.” Each of these replies was objected to, and in each case it is evident that the witness, instead of confining himself to a proper answer to the question, was allowed to bring before the jury the statements of persons, who were not only not sworn, but whose names, even, were not known. It was impossible that such statements should be without influence upon the jury; especially, 'as what these unknown persons are reported to have said had a tendency to support a portion of the sworn testimony against another portion upon a disputed point. And, as this testimony from the Coons was incompetent and inadmissible for any purpose, I do not think the error committed in admitting it was cured by the instruction of the judge to the jury, that they ought not to consider it as proof of a substantive fact, as it was only proper as showing that the attention of witnesses was called to the ringing, or not ringing of the bell.
The Circuit Judge, I think, was right in ruling out the question put to the plaintiff, on cross - examination, as to
I think the judge erred, however, in restricting the cross-examination of S. H. Coon, as he did in other particulars. On his direct examination, this witness had testified that he went to the depot the morning of the accident with his carriage. It stood north of the west end of the depot platform, backed up to it at the northwest corner. He heard the whistle east of the mile post, but the train was not in sight; he stood in his carriage and was looking for the train. It came in sight just east of the switch. And he then narrated the subsequent facts, including the injury to the plaintiff. On his cross-examination he was asked, “From the hotel, what obstructions are there to prevent seeing the train as well as from the platform ? ” This question was ruled out, as not proper cross-examination within the rule laid down in People v. Horton, 4 Mich. 67.
The case of People v. Horton, we think, is overruled, so far as it has any bearing upon the present question, by the cases of Chandler v. Allison, 10 Mich. 477; Dann v. Cudney 13 Mich. 239 and Thompson v. Pickards, 14 Mich. 172. The case itself we have always regarded as a departure from the true rule of cross-examination, and it has had a tendency, greatly and unreasonably, to embarrass the elucidation of the truth by the sifting of witnesses ever since the case was decided. When a party places a witness upon the stand to testify to facts Avhicli tend to support his side of the issue involved, and questions him concerning such facts, it is the right of the opposite party, on cross-examination,
In the present case, the facts which the plaintiff sought to establish, were that he was injured, and that the negligence of the defendants was the proximate cause. Necessarily intermingled with this, however, was the question whether the plaintiff had not also been guilty of negligence which materially contributed to the injury; and this question was so involved in the examination of the plaintiff’s witnesses, that it was impossible to keep it out of view for a moment. Prima facie one who walks in front of a train which he knows is. coming, and is run over, is guilty of some want of prudence; and the plaintiff found it necessary in this case to put in evidence such facts concerning the management of the train by defendants as would tend to relieve him from this apparent liability to censure. The distance at which the train could be seen from the plaintiff’s hotel, as well as from the depot platform, was an important fact bearing upon this issue; and as such, the defendants were entitled to inquire into it of any witness who had been put upon the stand to testify to the negligence of the persons in charge of their train.
I do not think there was any error, in the admission of testimony, from the witness Baker to show that the train could not be seen from the depot platform more than fifty or sixty rods. The testimony was offered as rebutting to that given by the defendants; but if it was not strictly so, the judge had a right, in his discretion, to admit it; and having this right, I think we must treat the evidence as properly admitted, notwithstanding he may not have stated that he admitted it under his discretionary power. This is to be understood, if the evidence was not admissible on other grounds.
The testimony of the witness Haven, as to the effect of dysentery on the plaintiff, was irrelevant and should have been excluded. There was no evidence that this disease was induced by the injury.
I am inclined to think there Avas no error in law in admitting the evidence of the Avitness Springer that the engineer Yan Wormer had run by the stations in some instances. This evidence would not have been admissible as evidence in chief to establish the negligence of the engineer on the occasion of the injury; but the defendants had put in evidence tending to establish the character of Yan Wormer as an average engineer; and though the testimony was not very pointed or specific, the evident tendency and purpose of it Avas to show Yan Wormer a suitable man for his place. If this evidence could have any relevancy in a case where the question Avas one of negligence on a particular occasion only, then I think this of Springer Avas admissible as rebutting; but for no other purpose.
To understand the requests to charge which were made on the part of the defendants, and to be able to judge of the propriety of their refusal, it will be necessary to state a portion of the plaintiff’s evidence. The plaintiff’s own account of the transaction was as follows:
“I live in Holly, and in 1865 kept the Holly Exchange, in company with my brother-in-law, Henry Springer. I commenced keeping it about September 15, 1865. The defendants had run trains of cars through the village of Holly ton or twelve years; their depot is south and west of the hotel, and their track is on the south side of the depot, and upon which track all the trains of the road are run, and stopped in front of their depot; and the track of the Flint and Holly Railroad Company is on the north and east side of the depot, and between the depot and the hotel. In September, 1865, defendants’ engines and trains brought in the Flint and Holly travel, and, .at Holly, fun from junction on the Flint and Holly Railroad track to front of the depot on the northeast side, between our hotel and depot, and stopped in front of the waiting room, then left the coaches and moved on with their engines and switched off; and the Flint and Holly Railroad Company’s engines then backed up, hitched on to the coaches and took them to Flint. The junction of the two roads is southeast of the depot, and the trains stopped in front of the waiting room at the depot for passengers to get on and off, and to make the changes of engines. There was a platform between the depot and the track, extending close up to the track. The*113 trains always stopped at the depot. I had always been, accustomed to go to the depot from my hotel across the street, running to the railroad; it was the way of public travel. The passage-way from the hotel to the depot was across a street running down to defendant’s track. On the morning of September 15, 18C5, I was in the hotel; I had been putting down a carpet; came out and went down town, and got shaved; went into post office and came back; went into hotel with the mail; had been gone down town some time; just after I went in I heard a whistle, and said to my brother-in-law, Henry Springer, that a train was coming, and that he had better go over; Springer had on his slippers, and told me to go. I did not know whether it was an eastern or a western train. I started to go to the train; passed out of a door on the south side of the hotel nearest to the billiard room; met Mr. Charles Donaldson, another hotel keeper, and asked him if he was going to the train; Donaldson replied that he was; when I got out beyond the corner of the billiard room of my hotel, I looked to see if I could see a train from the east, and saw none. Donaldson and I passed on towards the depot, Donaldson being a step or two in advance, and to my' left. When I got near the railroad track, Donaldson sprang across the track, and just as I put my left foot over the first rail, some one screamed to me. I turned my head towards the right, and at that instant the cow-catcher struck me above the ankle and threw me on the cow - catcher. I threw myself back towards the hotel, kicked to get loose and was caught by my right foot and the great toe of that foot taken off; was picked up and carried into the hotel.” The plaintiff here explained a map of the premises, and a red line upon it indicating his course in going from the hotel to the depot, and proceeded: “My course to the track was a little further north than the red line on the map, and a little past the center of the depot and the center of the street. I was a little past the center of the*114 street, and in the public road, when I was struck. My left leg was cut off, and after I was struck I was not conscious for a day or two. There was no train in sight when the whistle blew; a train -could be seen fifty or sixty rods after a person had got out far enough to see past the billiard room. When I looked to see if I could see the train, I was near the corner of the post on the hotel stoop. It was over a half mile from the depot to the mile post on defendant’s track, east. I heard nothing of the train after the first whistle until it struck me. Some mornings the train makes more noise than at others; some mornings making little noise; and trains run more quietly on' the Flint and Holly track than on the defendant’s; the former track being new and smooth.”
The plaintiff gave further evidence tending to show that at the time of the injury the train was moving at the rate of ten miles an hour, or faster; that the engine was within about fifty feet of the usual place of stopping, and at this rate could not have been checked at that place. He also put in evidence tending to prove that no bell was rung or alarm sounded, after the whistle heard by him, until he was struck. It was also stated by some of the witnesses that a third person, who was spoken of as a conductor, immediately preceded the plaintiff and Donaldson in crossing from the hotel to the depot, and it would seem from appearances that neither of the three saw the train until the instant it was upon the plaintiff; Donnelly the same instant springing out of its reach.
Strong evidence Avas given on the part of the defendants tending to disprove the high rate of speed testified to by plaintiff’s witnesses, and to sIioav that the bell Avas rung as the engine approached the station. And it Avould appear that as the plaintiff stepped upon the track he would have been almost directly fronting a train coming from the direction of Flint, and could have seen it for a considerable distance, if it had been coming that way.
First: That the conduct of the plaintiff, by leaving the hotel, with knowledge that a train was coming, and walking upon the track in front of the train, which could be seen for fifty or sixty rods, is negligence, and he cannot recover.
Second: If the jury believe that the plaintiff heard the whistle announcing the approach of the train, and knew that any train was arriving, and that it could be seen for fifty or sixty rods during his walk from the hotel, and he went upon the track, this is such negligence as will prohibit his recovery.
Third: That if the defendant’s employees were negligent in omitting to ring the bell, and also in approaching the station too rapidly, if plaintiff heard the whistle announcing the approach of the train, and from negligence and inattention walked upon the track, he cannot recover.
Fourth: That if the plaintiff heard the whistle, and knew the time when this train Avas due, it is absence of ordinary care for the plaintiff to walk upon the track in front of the engine, and he cannot recover.
Before noticing these requests, the Circuit Judge instructed the jury, that the first proposition for them to consider, Avas, whether the defendant, in running its engine and train, upon the occasion in question, immediately preceding and at the time of the accident complained of, Avas exercising ordinary care and diligence, and if the jury should find that the defendant was not guilty of a want of ordinary care and diligence, the plaintiff could not recover under any circumstances whatever; but, that if the jury should find that the defendant did not use ordinary care and diligence, under all the circumstances, then the next question for them to consider Avas the conduct of the plaintiff in the occurrences that immediately preceded the injury complained of, and at the time it happened, and that if
From this statement of the instructions to the jury, it must be evident, I think, that if the question of the plaintiff’s negligence was one to be left to the jury at all, it was very fairly submitted to them by the judge; or, at least, that there was nothing in his charge of which the defendants could justly complain. Without entering upon the debatable ground of the degree of negligence on the part of the plaintiff which should exonerate the defendants from liability, or on the part of the defendants which might justly subject them to responsibility, notwithstanding the plaintiff’s want of prudence, he gave them to understand that a want of reasonable and ordinary care and diligence on the part of the plaintiff should entirely excuse the defendants from liability for any degree of negligence, however great, of which they may have been guilty. The disputed point in the. present case is, whether there had not been shown by the evidence such a case of negligence on the part of the plaintiff as left nothing to be passed upon by the jury, but required the court to instruct them, as matter of law, that the plaintiff could not recover.
In determining this question, we must look at the case as it appears from the plaintiff’s own testimony, unqualified by any which was offered on the part of the defendants, and must concede to him any thing which he could fairly claim upon that evidence. He had a right to ask the jury to believe the case as he presented it; and, however improbable some portions of his testimony may appear to us, we can not say that the jury might not have given it full credence. It is for them, and not for the court to compare and weigh the evidence. For the purposes of any positive
As a general rule, it can not be doubted that the question of negligence is a question of fact and not of law.— Lynch v. Nurdin, 1 Q. B. 29; Cotton v. Wood, 8 C. B. N. S. 568; Carsley v. White, 21 Pick. 256; Bradley v. Boston and Maine R. R. 2 Cush. 539; Linfield v. Old Colony R. R. 10 Cush. 569; Rindge v. Inhabitants of Coleraine, 11 Gray, 157; Gahagan v. Boston and Lowell R. R. 1 Allen, 190; Housatonic R. R. v. Waterbury, 23 Conn. 101; Langhoff v. Milwaukee and Prairie du Chien R. R. 19 Wis. 497; Ernst v. Hudson River R. R. 35 N. Y. 9; Trow v. Vermont Central R. R. 24 Vt. 497; Vinton v. Schwab, 32 Id. 612; North Pennsylvania R. R. v. Heileman, 49 Penn. 63; Pennsylvania R. R. v. Ogier, 35 Id. 71; Central R. R. v. Moore, 4 Zab. 832; Macon and Western R. R. v. Davis, 13 Ga. 68; Same case, 18 Id. 683; Rusch v. Davenport, 6 Iowa, 443; Ind. and Cin. R. R. 9 Ind. 397; Renwick v. N. Y. Central R. R. 36 N. Y. 132. Negligence, as I understand it, consists. in a want of that reasonable care which would be exercised
There are, nevertheless, cases in which it has been held proper for the court to take the question altogether 'aAvay from the jury, and decide it as one of law. It is generally held, and is, I think, the correct doctrine that it is incumbent on the plaintiff to shoAV that the injury of Avhich he complains Avas caused by the negligence of the defendant, and that it did not arise from his oavu negligence or want of skill. ■ He takes it upon himself to prove both; and he does not recover if he Avas negligent, because it can not be said that the defendants’ negligence has caused an injury which would not have happened but for his own Avant of due care.— Lane v. Crombie, 12 Pick. 176; Carsley v. White, 21 Id. 254; Lucas v. Taunton and New Bedford R. R. 6
The case, however, must be a very clear one which would justify the court in taking upon itself this responsibility. For when the judge decides that a want of due care is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and, measuring the plaintiff’s counduct by that, turns him out of court upon his opinion of what a reasonably prudent man ought to have done under the circumstances. 1 He thus makes his own opinion of what would be generally regarded as prudence a definite rule of law. It is quite possible that if the same question of prudence were submitted to a jury collected from the different occupations of society, and perhaps better competent to judge of the common opinion, he might find them differing with him as to the ordinary standard of proper care. The next judge trying a similar case may also be of a different opinion, and, because the case is not clear, hold that to be a question of fact which the first has ruled to be one of law. Indeed, I think the cases are not so numerous as has been sometimes supposed in which, a
But Avhile there is any uncertainty, it remains a matter of fact for the consideration of the jury.— Briggs v. Taylor, 28 Vt. 188. The difficulty in these cases of negligent injuries is, that it very seldom happens that injuries are repeated under the same circumstances; and, therefore, no common standard of conduct by prudent men becomes fixed or known. In North Pennsylvania R. R. v. Heileman, 49 Penn. 63, it is said: “That what constitutes negligence in a particular case is generally a question for the jury and not for the court is undoubtedly true, because negligence is want of ordinary care. To determine whether there has been any, involves, therefore, two inquiries: First, What would have been ordinary care under the circumstances; and Second, Whether the conduct of the person charged with negligence came up to that standard. In most cases the standard is variable, and it must be found by a jury. But when the standard is fixed, when the measure of the duty is defined by the law, entire omission to perform it is negligence. In such a case the jury have but one of these inquiries to make. They have only to find whether he, upon whom the duty rests, has performed it. If he has not, the law fixes the character of his failure and pronounces it negligence.”. In Meesel v. Lynn and Boston R. R. 8 Allen, 234, the court declined to instruct the jury that riding upon the outside platform of a horse railroad car was such a want of ordinary care as would prevent a recovery for an injury sustained by being thrown therefrom. “There is no such general knowledge,” says the judge delivering the opinion, “as enables the court to
It is a mistake, therefore, to say, as is sometimes said, that when the facts are undisputed the question of negligence is necessarily one of law. This is generally true only of that class of cases where a party has failed in the performance of a clear legal duty. When the question arises
Applying the principle of these cases to the one now before the court, I think the refusal of the judge to give the instructions prayed for was correct, and that the charge as given was just towards the defendants. It certainly can not be said that the plaintiff, on any view of the evidence,
The errors in the record, which have been pointed out, make it necessary to reverse the judgment and order a new trial. The plaintiffs in error will recover costs in this court, and. the costs in the court below will abide the result.
Concurrence Opinion
I concur in the result and in most of the conclusions of my brethren, but upon some points my views are not entirely in conformity with them.
While persons acting as mail agents have it in their power, in most cases, to devote more or less observation to the running and stopping of cars, there is nothing in their duties requiring it, and I do not think it can be assumed without proof that they have done so. They are not chosen for mechanical skill, nor entrusted with duties- connected with the management of trains. It is not doubted that the estimate requisite to determine within what space a particular train can be stopped, when running at different rates, is a question of skill requiring the opinion of experts. There are few nicer questions in railroad science and practice, and the result depends upon so many different elements of momentum, grade, condition of track, and the number and power of brakes, as to demand considerable observation and experience. I think before the witnesses were allowed to give opinions, a foundation should have been laid, by showing that they had been accustomed to observe these matters, and had given them some attention. The objection was made early enough to permit of preliminary questioning, and I think it should have been required.
So far as that evidence is concerned, which was introduced to show a frequent or habitual carelessness, in Van
I also think defendants below were entitled to the rejected instructions. So long as .there is any possible conflict as to whether his case is made out, the plaintiff has a clear right to go to the jury. But when upon his 'own case, as presented by himself, and as assumed for this purpose to be entirely true, he shows no cause of action, the effect of the facts so admitted is a question of law, and a party may require a charge as to their legal effect. I think this doctrine has never been questioned anywhere. In Pennsylvania Mining Company v. Brady, 16 Mich. 322, this .doctrine was fully applied, and I do not understand the general principle to admit of a doubt. Where facts are ambiguous of course it is for the jury to draw the inference. But where they admit of but one construction, I think in civil cases the rule is uniform that the court may be required to instruct the jury upon their legal bearing. And a sjDecial verdict finding them would entitle one party or the other to judgment.
In this case the plaintiff told his own story, and testified that he knew a train was coming from • some quarter, that he knew the hours of the trains, that he left his house
If any other facts in the case, or if any conceivable degree of .negligence in the railroad company, set up by the plaintiff, could have so operated as to render such conduct anything but negligent in him, then the court was right in refusing to charge as requested. But it seems to me that, if under such circumstances, a person is not required to look upon a railroad track before attempting to cross it, there is no available precaution which the law can exact of a man, of sound mind, for his own preservation. Where risks are unusually dangerous in their consequences to life or limb, the same principle which holds the owners of such powerful machinery to be more than usually careful, renders it just as necessary for all other persons to use due care in approaching them. And absence of mind and inattention to danger can not fail to bo negligence in any case where human safety is likely to be periled by them.
With these exceptions I concur in the opinion of the Chief Justice.
