110 Mich. 648 | Mich. | 1896
The plaintiff’s son, an infant about two years of age, wandered from the premises of its grandmother into the highway, and from there upon and along a private way to the defendant’s railroad track, where it was killed by a train of flat or freight cars which was being backed slowly, in the process of switching. No eyewitness of the accident was produced, but there was evidence tending to show that there was no lookout upon
While it is true that the child was not killed upon a public highway, there was evidence that tended to show that the accident occurred upon, or in immediate proximity to, a private way, crossing the defendant’s track, which was in daily and common use by the owners, and such footmen from the adjoining village as chose to use the same, and that this was known to the defendant and its employés. In such usage, which had long continued, the defendant apparently acquiesced. To what extent this, way was traveled, and consequently the degree of care required in the management of trains, were proper questions for the jury. Schindler v. Railway Co., 87 Mich. 400; Townley v. Railway Co., 53 Wis. 626; Reifsnyder v. Railway Co., 90 Iowa, 76; Clampit v. Railway Co., 84 Iowa, 71; Cooper v. Railway Co., 66 Mich. 261 [11 Am. St. Rep. 482).
The mother of the child was visiting at the grandmother’s, and the child was with other children in the yard. The testimony indicates that they were out of sight but a few moments, before the accident occurred; and we cannot say that the mother was negligent, that being a proper question to be left to the jury.
The judgment is affirmed.