114 Mich. 260 | Mich. | 1897
The defendant operates a manufacturing plant at the city of Wyandotte. To carry on that business it controls and uses cars, engines, etc., having a track from its works extending out to and along Eureka avenue. This track has been laid for many years along this public street, and is. connected with the tracks of the Michigan Central Railroad. The plaintiff, a boy about nine years of age, on May 28, 1892, was passing across this street. He, with another boy, a little older, had been across the track from their homes, and in going back the avenue was filled with freight cars. There was an opening between two of them. The older boy passed safely through the opening, which was about three feet wide. The plaintiff attempted to pass, when the cars came together, and he was caught between the bumpers, and severely injured. This action is brought to recover for the damages sustained. The negligence charged is that the cars were kicked back upon that siding without any warning, and without any brakeman or other person upon the same to warn persons crossing, or to control the cars. The testimony of the boys shows that they did not notice that the cars were in motion, and saw no engine there. Other testimony was given tending to show that a short time previously cars had been brought from the works, and pushed upon this siding, where many other cars stood at the time; that this engine was under the control of the defendant’s engineer, and only one brakeman was there, and he was riding on- the engine. About the time of the injury the engine was seen going away from the siding. The case was submitted to the jury upon the facts as shown, and verdict was given in favor of plaintiff for $1,200. Defendant’s contentions are: (1) That the court should have taken the case from the jury, for the reason that there was no evidence tending to show the negligence of the defendant; and. (2) that the plaintiff was guilty of contributory negligence.
The negligence of the defendant under the circumstances here shown was a question for the jury. This was
The question of the plaintiff’s contributory negligence counsel for defendant argues at great length in his brief. We think that question was fairly left to the jury. The same rule is not to be applied to a mere child that would be applied to an adult. As was said by Mr. Justice Cooley in East Saginaw City R. Co. v. Bohn, 27 Mich. 503:
“It would be unreasonable and cruel in the extreme to hold such a child responsible for a prudence and foresight beyond his years, and for a perception and comprehension of dangers which are only learned by experience, or by observation and reflection.'”
See, also, Hargreaves v. Deacon, 25 Mich. 1; Daniels v. Clegg, 28 Mich. 32; Hassenyer v. Railroad Co., 48 Mich. 205 (42 Am. Rep. 470); Ecliff v. Railway Co., 64 Mich. 196.
The judgment is affirmed.