101 Mich. 234 | Mich. | 1894
Defendant appeals from a judgment obtained at the circuit for an injury sustained near defendant’s railway, at its crossing of a highway.
Plaintiff was riding in a cutter with her husband, upon a highway that was nearly parallel with defendant’s track for about three-fourths of a mile, varying in distance from the track from 35 to 200 feet. This highway finally crossed the track, near the place of the accident, at an angle of about 45 degrees. To the east of this crossing was a sharp curve around a hill which lay to the eastward of the highway, rendering it impossible to see the train approaching from the east, from any point upon the highway, until the line of the right of way was crossed. Plaintiff was approaching this crossing, and just at the line of the right of way the train came into view something less than 300 feet distant from the crossing. The horse turned about, and ran away, upsetting the cutter,
The counsel for defendant contend that the court should have directed a verdict against the plaintiff, for two reasons:
1. Because the testimony conclusively showed that the signals were given.
2. Because the plaintiff and her husband did not stop and listen before reaching the point where the accident occurred.
Were we to pass upon the question of fact, we should say that the giving of the signals was established by a preponderance of the evidence, but we cannot say that there was no evidence to the contrary. Plaintiff and her husband both testify that they were listening, — the horse having been brought to a walk, — and that they heard none, and that it was a calm day. William Howard, who was on the train, testified positively that they were not given. In the light of this testimony, we think it plainly a question for the jury.
Should the judge have held that, under the facts shown, it was the duty of plaintiff’s husband to stop and listen before getting so near the railway crossing that his horse might be frightened at the approach of the train? The husband testified that he waited two hours to make sure that the train had passed; that he inquired, and was told that it had, and so believed. This testimony indicates that he did not like to meet the train upon the parallel road, though he testifies that he had done so without accident, and would not have expected an accident had he met it on this occasion. On the other hand, it shows some effort to avoid accident. It has been held in many cases that, before venturing upon a track where the view of an
Defendant complains that the plaintiff’s husband was permitted to testify that the horse was frightened by the train, upon the ground that the question was for the jury, and that the evidence involved a conclusion. In Geveke v.
In the course of his charge the court said:
“ Some of plaintiff’s witnesses have testified that they were looking and listening for approaching trains, and that if the whistle had been blown, and the bell had been rung, as 'required by law, they could and would have heard them."
This is said to be error, for the reason that no witness so testified, and, furthermore, such testimony had been excluded upon the ground that it was opinion evidence, and the question one for the jury, and not for the witness.
It is not uncommon for trains to pass, giving signals, without notice on the part of bystanders. It is, in such cases, a matter of inattention; and, if one does not notice them, abont all that can ordinarily be said is that he did not notice or hear them. Such evidence is negative testimony, unless there be something in the circumstances tending to show a probability that they would have been heard if given.
In answer to a special question, the jury found that the signals were not given.
See Sanborn v. Railroad Co., 99 Mich. 1, and note.