130 Mich. 666 | Mich. | 1902
The plaintiff entered defendant’s train at Detroit. The first stop regularly made upon this road is at a junction with the Lake Shore road some distance from the starting point, but within the city. Some blocks before reaching the junction, the road crosses Farnsworth street. Demand was made upon plaintiff for his fare, which he refused to pay, and when the train made its first stop (according to the testimony of the witnesses upon the train) he was told by the conductor that he must get off. He had not yet sat down in the car, according to some of the testimony, and he walked to the door, down the steps, and alighted without assistance. He was left upon the grouúd, the conductor staying with him until the train passed, when he mounted the rear platform. The conductor and trainmen say that this occurred at the Lake Shore junction, and the only testimony said to show the contrary from witnesses on the train is that of two of plaintiff’s witnesses, — DeConick, who said he did not know where it was, but that it was at the first stop; and Adcock, who testified that he thought he was put off at the first stop; that he knew the train stopped at Lake Shore junction, but did not think plaintiff was put off there, because he saw no lights where he was put off. Two other witnesses testified to seeing a passenger train stop about 50 feet north of Farnsworth street, where a man was put off. The witnesses stood on Farnsworth street, and one or both of them stated that the rear end of the train passed them about the time the man got to them as they stood near the flagman’s house on Farnsworth street. He came up to them as they stood by the shanty, 25 or more feet east of the track, and one said that he asked the way downtown, and" both stated that he was told to come with them, and they would put him on a car going downtown. This he did not seem inclined to do,
The next person who saw this man was the engineer of another train. He was walking between two tracks on the railroad right of way, and was struck by the engine as it passed by him, and injured. This was 100 or 200 feet from where he alighted from the train, and south of Farnsworth street. The negligence complained of is— First, leaving him in a place of danger; second, abandoning him to look out for himself at a time when he was incapable of doing so by reason of his intoxication.
The testimony of these two officers is all that shows that the man was put off near Farnsworth street, instead of at the Lake Shore junction, and they agree that he left the track, and went with them to the flagman’s shanty, 25 or 30 feet east of the tracks. We may treat the case, then, as though he had been left at that point, and taken 25 or 30 feet from the tracks, in a public and well-frequented street in the city, and left in the presence of two citizens, and the question of the fitness of the place where the train stopped is eliminated. In this respect the case is like that of Hamilton v. Railroad Co., 183 Pa. St. 638 (38 Atl. 1085), where one walked back'to a station after being carried by, and was there injured. The court said it was as though he had gotten off at the station.
Plaintiff’s counsel insist that it must be left to the jury to say how drunk the man was, and whether, under the
It is unnecessary to cite and discuss the numerous cases which counsel have cited in their briefs. Each rests upon its own facts, as this one must do; and the rule that, wherever a claim of negligence is made, the case must be given to a jury, though the undispted facts conclusively show an absence of negligence, does not obtain in this
The judgment is reversed, and a new trial ordered.