52 Mich. 108 | Mich. | 1883
On the 29th of September, 1881, the plaintiff was on his way to the city of Muskegon by the public road known as the Allegan, Muskegon & Traverse Bay State road, with a load of hay, and on passing over the defendant’s track where it crosses said road near the city, his load upset and he received injury. He attributed the occurrence to the unsafe condition of the south approach contiguous to the rail, and sued the company in this action for his damages. The circuit judge instructed the jury to-find in favor of the company. The grounds on which the ruling is defended will be briefly noticed.
Fi/rst. It is made a point that no testimony was offered
Second. It is next contended that the railway company was not subject to any duty to keep the ápproaches to its track in order at the crossings of public roads. The requirement of law, we are told, goes no further as respects the ■company than to exact a restoration of the road, when the ■crossing is made, to its former state as near as may be, leaving it as a duty of the public to keep up and preserve the proper conditions thereafter, and to do whatever else the public safety or convenience may dictate.
This is not a correct view. If the Legislature had kept silent, the common law would have applied, and the company, ■on cutting through the highway, would have been bound to •construct and maintain the crossing in such plight as to make it reasonably safe. People v. Chicago & A. R. R. Co. 67 Ill. 118; Oliver v. Northeastern Ry. Co. L. R. 9 Q. B. 409; Paducah & Elizabethtown R. R. Co. v. Commonwealth (Ky.) 10 Am. & Eng. R. R. Cas. 318; Manley v. St. Helen's C. & Ry. Co. 2 H. & N. 840. And it could not have been the purpose of the Legislature to abridge this •duty. No reason for such a design can be imagined. The intent would rather be to explain and emphasize if not to ■expand it.
The statute declares that the company must restore the highway to its former state as near as may be, and construct suitable road crossings for the passage of teams, by putting down plank between and on each side of the rails of •such road, the top of which shall be at least as high as the top of the rails of such road. Act 177 of the. Session of 1877, sec. 9, subd. 5 [IIow. Stat. § 3323]. The same reason would exist for perpetuating these conditions as for having
Third. "Whether the duty to prevent the defects complained of extended to the city of Muskegon there is no occasion to decide. It is quite sufficient that on the theory of fact affirmed by the plaintiff, the suit is well brought against the defendant. If any duty lay upon the city to preserve the approach and crossing in a reasonably safe condition, — a point which is not considered, — it was not exclusive. It had no effect to derogate from the duty, or mitigate the responsibility of the defendant, and it could make no difference with the question of liability as between the latter and the plaintiff. Under the state of facts on which -the plaintiff relies, the defendant would certainly be liable whether the city would be or not. The principle is well .settled. Masterton v. Railroad Co. supra; McKenna v. Metropolitan R. R. Co. 112 Mass. 55; Judson v. N. Y. & N. H. R. R. Co. 29 Conn. 434.
No reference has been made to the late provision in the .highway law, which took effect about three weeks prior to the injury for which the plaintiff sues. Public Act 2é3 of the Session of 1881, section 27. [How. St. § 1322], The application of that provision is not certain and there can be no asumption that an individual would haye any remedy in virtue of it. Further remark is uncalled for.
The ruling cannot be defended on the reasons urged in its favor and the judgment must be reversed with costs and a new trial granted.