57 Mich. 525 | Mich. | 1885
Lead Opinion
Otto Klanowski, on the 23rd day of June, 1883, lived with his family, consisting of himself, his wife and four children, upon six acres of land, situated oh Chene street near the city of Detroit, and about a mile from where the same crosses the Grand Trunk Railway. He was a teamster owning a team and wagon, and on that day had been plowing for a neighbor by the name of Miller, who lived upon what is called the “Miller Road,” which runs east of Chene street, and across the railway track diagonally about 24 rods north-east of the Chene street crossing. This was known as the “Miller Crossing.” Still further northeast, about three-quarters of a mile on the line of the railway, is what is known as “ Biglow’s Crossing” on Court street.
On the evening of the 23rd of June aforesaid, between nine and ten o’clock, Klanowski started to go home from his work at Miller’s with his team and wagon, having his son, Emil, with him, a lad about fifteen years old, and who drove the team. In making the crossing upon the Miller road, they were overtaken by the Montreal Express, consisting of three coaches, a baggage car, and the engine, which came down upon them from the northeast at the rate of forty miles an hour, the engine striking the wagon just as it was about leaving the track and completely demolishing it, killing Mr. Klanowski almost instantly, greatly injuring the son, breaking his thigh and shoulder, and killing one of the horses. On the 7th day of August following, the plaintiff, who was the wife of the deceased, was duly appointed
The case has been twice tried in the Wayne circuit court, and the plaintiff obtained a verdict upon each trial, which in the first was set aside in the circuit court, and the proceedings upon the second trial are now before us for review, brought up by writ of error, the record showing a bill of •exceptions containing the substance of all the testimony taken upon the trial. Thirty-four assignments of error are presented for our consideration. When the plaintiff rested her case, counsel for defendants asked the court to direct the jury to render a verdict for the defendant on the ground that the deceased contributed to the injury, and at the close of the trial requested the court to charge the jury “ that,. under the testimony in this case, the plaintiff is not entitled to recover, and the verdict of the jury should be for the defendant.” The court declined in each case to give the instruction asked, and exceptions were duly taken. These exceptions are properly first to be considered, because, if these rulings of the court were wrong, it is unnecessary to give attention to the other errors claimed. A view of the premises where the collision occurred and the deceased was killed, was taken by the jury under the direction of the court.
There are certain (statutory duties required to be observed and performed by a railway company in this State, intended to prevent injury and accidents to persons and property at railway crossings and other places of danger. These requirements are made for the benefit of passengers, strangers and travelers on the highway (Evans v. Atlantic &c. R. Co. 62 Mo. 49), and such duties cannot be neglected or omitted with impunity. If they are, and an injury to persons or property occurs by reason thereof at such places, the company will be liable; and although the party injured under
In approaching a crossing upon a highway the circumstances differ in almost every case. Sometimes they are favorable to making an early discovery of the train, and many times not; sometimes the team requires more attention than at others; in some cases the approach to the track ■up and at others down; some persons have quicker sight than others and can see at far greater distances; at some ■crossings the train moves on an up grade and at others on a down grade, and the road-bed often being elevated and not unfrequently depressed below the surface of the highway, ■and in most cases the view is more or less obstructed by .fences, bushes, shrubbery or embankments. Many times the train runs much stiller than at others in consequence of the ■condition of the atmosphere and other causes ; in all cases, persons, except those in charge of the train, are liable to be ■deceived in the speed of the train, and in no case is the exact time when the engine reaches the crossing known to others than the engineer. For these and many other reasons which might be given no other safe rule can be adopted. No less than the giving of every warning the law exacts should be held sufficient to shield the company from liability for damages arising from injuries received at such places. Safety to the lives of those traveling upon the cars, as well as to those traveling in vehicles upon the highway, requires this. All persons have a right to expect and rely upon the full performance hy the company of all the requirements and duties imposed upon it by the law under which it alone is allowed to exist and do business, and it is not unfrequently impossible to ascertain with any degree of certainty how far the neglect •of the company to give the required warnings at highway
These are very important and significant warnings. It is claimed upon the part of the plaintiff these signals of the approaching train were not given ; and if there is testimony in the case tending to show the claim was true, it was certainly the duty of the court to submit the case to'the jury upon that point. On the part of the defendant the conductor, engineer, fireman, brakeman and another employee of the company, who was a passenger upon the train, all gave testimony that the statutory signals were given. On the part of the plaintiff -were sworn the son of the deceased, who was in the wagon and driving the team at the time the injury occurred; Mr. Alstadt, who was sitting by the side- of the track about twenty rods from the Miller road, aud heard the crash; Mr. Moebly, who was within a short distance of the train and heard it coming; Mr. Harris, who was with Moebly, and first saw the train at the Biglow crossing, and saw it when it crossed the Miller road; Mr. Schmidt, who lived on Chene street, near the railway crossing, and about two hundred paces from the Miller crossing, and heard the crash and heard the train a short time before; Mrs. Schmidt, who was in her kitchen door and heard the crash; George Strikle, who was in the wagon with Mr. Moebly when the train passed near the Miller house, and heard it; Kate Strikle, who was in the wagon with Mr. Moebly at the time the train passed; and Maggie Moebly, who was also in the vicinity of
These nine witnesses are not materially discredited save by the testimony of the five sworn on the part of the defense. The testimony for the plaintiff, as it stands in this record upon this subject, rises to the plane of evidence, and as such was entitled to the careful consideration of the jury. It raised the question of credibility of the defendant’s witnesses, which is always a question for the jury, and, if believed, was quite sufficient to fix inexcusable negligence on the part of the defendant, and it would clearly have been usurpation in the court to have otherwise treated it.
It is said by counsel that the testimony of plaintiff’s witnesses on this point is all negative in its character. This is true: but the fact which the law requires her to establish is also a negative one, and the value and weight of this class of testimony must necessarily depend upon the circumstances affording opportunity to render certain the facts stated; for instance, a brakeman, located upon a train five coaches from the engine or bell, is no more likely to hear the signals when made than a person standing upon the ground or. sitting in a wagon listening for them at the same distance, when both are giving equal attention: and if the two are equally
In determining the question whether the case should or should not be submitted to the jury, the court cannot pass upon the credibility of the witnesses, or that of the other testimony in the case, but must assume the plaintiff’s testimony to be true. If the court is satisfied that gross injustice has been done the defendant by a mistake of the jury, after proper instructions as to their duty in weighing and scrutinizing the testimony have been given, an opportunity should be afforded to make the correction by the circuit judge granting a new trial. I quite agree with the learned counsel for the defendant that in a case like this a witness, or any number of them, who simply testify that they did not hear the whistle sounded, or the bell rung, would furnish little or no evidence of the fact, unaccompanied by other circumr stances, even though it was apparent that they might have heard both, had they been listening or had their attention
This injury occurred at a street crossing in the evening between nine and ten o’clock. The night was quite dark, and it is undisputed that the train was running at the rate of forty miles an hour, or about three rods per second, as it approached the crossing, going into Grand Junction. The crossing also appears to have been frequented by people traveling on, foot and in vehicles by night and by day. There was also testimony in the case tending to show this to be a dangerous crossing, particularly in the night time. Emil Klanowski and Henry Yalkner gave testimony upon this point. In addition to their statements the jury took a view of the premises under circumstances Which must have aided in arriving at a correct conclusion upon this subject; and it is claimed by plaintiff that the rate of speed at which the crossing was approached and made by defendant’s train was too great — -unreasonably so — and sufficient alone to account
I think the record shows a case of unusual speed and want of proper care under all circumstances; a half second less speed would, in all probability, have saved one life and injury to another, the extent of which time alone can determine. The evidence of the engineer shows that the speed was so
The case of the Grand Rapids & I. R. Co. v. Huntley 38 Mich. 540, I do not think has any application to the one we are considering. In that case the injury occurred by the breaking of an axle. It does not appear that the train was approaching a crossing or any other place of danger, or that the speed of the train had anything particularly to do with the injury complained of, or the accident that caused it; and under the facts stated in the case, I think we must all agree that it was rightly decided.
The next question to be considered, under the view I have taken of the case, is, was the deceased guilty of that degree ■of carelessness which should excuse the defendant, even though negligent in the respect claimed by plaintiff ? Defen d-
This is the statement of the survivor of the catastrophe of that fatal night; and from it, it. appears that he stopped his team for some time only sixty-five feet from the track, and looked both ways and listened before he approached the crossing, but did not hear or discover the train. This is all he could be required to do under the decisions of this Court. Lake Shore & M. S. R. Co. v. Miller. 25 Mich. 290; Haas v. Grand Rapids & I. R. Co. 47 Mich. 401; Chicago & N. E. Ry. Co. v. Miller 46 Mich. 533. That he did not see or hear the train, if his statements are true, was clearly the fault of the company in allowing the view to be obstructed and not giving proper signals, and not that of the young man. I do not think any such contributory fault on the part of the plaintiff is shown as would warrant the court in directing the verdict, and the ruling of the circuit judge to that effect was entirely proper. If there was any doubt upon the question, it was the duty of the court to give the case to the jury. Teipel v. Hilsendegen 44 Mich. 461; Pierce on R. R. 314, et seq. I am aware that there was strong testimony given tend
Quite a large number of cases have been called to our attention by counsel for defendant iii his brief, upon the subject of contributory negligence where injuries have been received at highway crossings, but a careful comparison of the facts in each with those in the present case will show a material difference. Some of them, however, are quite similar in many of their features; but I'feel very certain that justice requires that omissions by the plaintiff which ai-e not the result of negligence, or which may be fairly attributable' to such fault on the part of the. defendant, in such cases should not be regarded as contributory, and so far as any of the cases hold differently I should be unwilling to agree with them. I cannot consent under any circumstances to make the negligence of the company a shield and a weapon for its defense.
Witness Warner was examined on the part of the plaintiff, and testified to the pecuniary value of the life of the deceased to his family. The testimony was objected to by counsel for defendant, who asked to have the same stricken out on the ground that it was incompetent and irrelevant, and because it was made on a basis not warranted by the- testimony in the case. I do not think the objection well founded. The testimony of the .wife furnished all the data except liaswell’s tables, which the witness used in making his computation. His testimony was a mere computation, which the jury could accept or not as they chose, according to their view of the testimony. The testimony was competent, and such as it is. usual to resort to in such cases. The defendant .could not be prejudiced by it, and no error was committed in receiving it. Chicago & N. W. Ry. v. Bayfield 37 Mich. 205.
I have now considered all the grounds relied upon for a reversal of the judgment in this case, and argued in the defendant’s brief. The discussion contained therein relating to the demerits of-the jury in our system of jurisprudence
The charge by Judge Jennison was clear, and applicable to the facts in the case. I have discovered no error therein, or in his rulings upon the trial, of which the defendant can reasonably complain, and the judgment should.be affirmed.
Concurrence Opinion
I agree with my brother Sherwood in the result he has reached, and I agree with my brother Campbell that the testimony of the witness based upon Haswell’s tables' was inadmissible; but I do not think that the jury were misled thereby, as their verdict does not appear to be based upon this testimony, and the other testimony was sufficient to warrant the verdict they gave.
Campbell J. The views expressed by my brother Sherwood upon some points are, I think, open to misapprehension, and while I think the case could not have been taken from the jury altogether, it is, in my opinion,, only because the court could not pass upon disputed facts, and not because, as matter of law, it could be held that negligence was so made out as to entitle complainant to any such ruling.
It is not negligence for a company, chartered and authorized to carry on a business involving necessary risks, to do so in the usual and appropriate manner, and under such.precautions as the law requires. When this is done the risks must be regarded as not involving fault. The party who seeks to recover must aver and prove in what manner the company has failed to do what it was a legal duty to do under the circumstances, and that the injury which resulted is caused by the averred wrong. In this ease I am not prepared to say there was not conflicting testimony upon matters of legal duty on which the jury could properly pass, and therefore the case •could not have been taken from them. But they could not
I also think there was error in’ allowing Mr. Warner to-testify to the jury what damages the family has sustained by the death of its head. The damages can only be what the-family have lost in a pecuniary sense by his death. To ascertain this it was no doubt proper to allow considerable inquiry into the extent to which he contributed to their support. But so far as the probabilities of their or his future are concerned,, the whole is sb far conjectural that, so far as anything can be based upon such probabilities, it is not a matter for experts- or witnesses, but for the jury, and no one else, subject to such-restraint against excessive estimates as will prevent mischief. It would be absurd to suppose as a matter of fact that in a given case a particular person would live the full term of years which only fewrpersons attain, or do in his old age all that he could do in his youth, or that a family of grown-up-persons would depend upon him as children would in infancy. It is only because there is no certainty that any speculation is allowed at all, but to allow witnesses to give to the jury their guesses on the subject would be dangerous in the extreme.
There should be a reversal and new trial.