47 Mich. 401 | Mich. | 1882
The plaintiff as administrator of the estate of Adrian Leenders, deceased, sued the railroad company for causing the death of his intestate by negligently running one of its trains so as to collide with his team while he was crossing its track in passing along the public highway. In the circuit court the case was taken from the jury by the instruction of the judge that they should return a verdict for the defendant. The instruction seems to have been given because in the opinion of the judge the declaration united two inconsistent causes of action; but as the plaintiff ■was suffered to put in all his evidence, if the case is fatally ■defective for any reason, it is immaterial whether the reason upon which the circuit judge acted was or was not the correct one.
The defense insisted in the court below, and insist here, ■that the only negligence which was shown in the case was imputable to Leenders himself, who carelessly drove against the train though he had fair warning of its approach. This claim makes it necessary to examine the evidence, and fortunately the record shows very little conflict.
The collision occurred at a road crossing about two miles south of Kalamazoo. The highway is an east and west road ■crossing the railroad nearly at right angles. The railroad for a considerable distance south of the crossing runs through a cut which in some places is sixteen feet deep, with occasional depressions in the banks through which an approaching train may be seen from the highway. About six hundred feet east of the crossing is a depression in the .surface of the country through which flows a brook in a general direction parallel to the line of the railroad. The highway crosses this brook by a bridge, and gradually
It is argued on the part of the plaintiff 'that these facts-show negligence in the railroad company resulting in the-
First. It is said the plaintiff offered to prove and could have proved that the company had neglected to comply with the provision in the act of 1875 (Public Acts p. 138) which requires that a sign-board with the words “ Bailroad Crossing” shall be posted at the crossing of public roads. This posting is required for the protection of the public, and though a penalty is imposed for neglect, individuals may no doubt have a remedy also in case of injury attributable to it. But there is no claim, pretence or suggestion in this case that the collision had any connection whatever with the failure to post the sign-board, or was in any manner influenced or affected by it. The sign-board is required as a warning of the existence of the crossing ; as a notification to those who might not observe or be otherwise made aware of the fact. But in this case the plaintiff gave evidence that his decedent was entirely familiar with the crossing ; that he not only knew about it but had frequent occasion to pass over it. More than this, it was a part of the plaintiff’s case that the decedent had the crossing in mind when he approached it on the occasion in question, and checked his team to listen for signals of approaching trains. After this showing by the plaintiff himself it was of no importance in the case that the railroad company had failed to erect the caution board. The duty to erect it was a duty to the public; and no private action could be grounded upon the neglect unless individual injury was traced to it. Pakalinsky v. N. Y. Central etc. R. R. Co. 82 N. Y. 424.
Second. It is said there was evidence from which the jury might have found that the bell was not rung continuously for forty rods before the engine reached the crossing, as is also required by the same statute. We doubt if there was such evidence. There was negative evidence that some parties who were in the vicinity did not hear or did not notice the ringing of the bell; but some of these were on the cars, and some were where the banks of the excavation tended to interrupt or to deaden the sound; and if the
Third. It is said this crossing was so peculiarly dangerous, because of the excavations through which are run both the highway and the railroad, that the railroad company did not discharge its full duty to the public unless it stationed a -flagman there to give warning of approaching trains, and that the failure to have such a flagman was negligence directly contributing to the casualty. It would no doubt, have tended to the security of travelers had a flagman been kept at this point as is suggested, but there 'is no statute requiring it, and the judiciary cannot establish police regulations on their own judgment where the Legislature has-apparently considered none essential. This was the crossing-of a common highway, in the open country, with nothing to-render it unusually hazardous except the fact of excavations ; but over the banks a train would be seen at intervals-by one who was approaching the crossing, and with ordinary care it would seem that he must avoid any collision. The-crossing of the two roads was on a level, and unless one was-approaching with an unmanageable team, there should have-been no difficulty in stopping if danger was perceived. There must be many more dangerous crossings of country roads than this. Before we could say that the neglect to-station a flagman at it was culpable fault, it should be made-to appear that the danger was altogether exceptional; that, there was something in the case which rendered ordinary
But tbe fatal defect in tbe case of tbe plaintiff is tbe negligence of tbe decedent himself. There is- not in the evidence tbe slightest indication that be observed any precaution whatever, unless his checking bis team when three rods or so from tbe crossing is to be referred to prudence. With respect to this we are left to conjecture ;• we only know that there was evidence tending to show that tbe decedent cheeked bis team for an instant, and that be then went forward upon a brisk trot until tbe beads of bis horses came in collision with thé engine. To excuse this we are told that tbe crossing was peculiarly exposed to danger because of tbe banks on either side of the approach; and that it was tbe duty of tbe railroad company because of this to observe extraordinary precautions. We may concede this, but it does not aid tbe plaintiff. The peculiar risks of tbe crossing imposed upon tbe decedent the duty of special caution also; and as be knew that a regular train was due at the crossing at about that time, be was under tbe highest possible obligation to observe such precautions as would be needful to avoid a collision. Pennsylvania R. R. Co. v. Beale 73 Penn. St. 504. We may concede that tbe rail-' road company failed to sound the bell; but this did not relieve tbe decedent from tbe duty of taking ordinary precautions for bis own safety. Railroad Co. v. Houston 95 U. S. 697, 702. And what ordinary prudence would demand must be determined on a view of all tbe circumstances. It is vain to urge or to pretend that ordinary precautions were made use of in this case. To move forward briskly as tbe decedent did, from a point whence an approaching train would not be seen, at a time when it was known by him that a train was due, and not to pause until tbe train was encountered, was so far from being ordinary prudence that it approached more nearly to absolute reck
There is no error in the record, and the judgment must be affirmed with costs.