189 Mich. 463 | Mich. | 1915
In the township of Northfield, in Washtenaw county, the tracks of the Ann Arbor Railroad Company run in a northerly and southerly direction across a public highway running east and west, known as the Nannery road. On the afternoon of September 5, 1914, a horse owned by plaintiff, while being driven by plaintiff’s son, Lawrence, was struck by one of the so-called gasoline cars operated on defendant’s road and injured to such an extent that it had to be killed. This action is brought to recover the value of the horse.
The boy was approaching the railroad track from the west, and was very familiar with the crossing; his home being in the near vicinity. When he had come to within from 90 to 100 feet of the crossing, he slowed his horse down to a walk and looked north, but without seeing any car in that direction. ■ He continued to approach the track, but from that time on confined his attention entirely to the south side of the highway. On that side the view was obscured by a field of standing corn and other obstructions, so that a car coming from the south could not be seen until the traveler had reached the railroad right of way. The boy says that it was because of these obstructions that he gave his attention entirely to the track on the south side. The car that struck the horse came from the north, and was not noticed by the boy until it had reached the cattle guards north of the highway. It was then
The negligence charged against the defendant company was the failure of its servants to give warning of the car’s approach by either sounding the whistle or ringing the bell; and this negligence was fully substantiated by the evidence, inasmuch as the defendant offered no proofs at the trial. The defense insisted upon is that the boy was guilty, upon his own showing, of contributory negligence in going upon the track without again looking north before doing so; and the court was requested to instruct the jury to that effect. This was refused; and the jury gave the plaintiff damages to the amount of $250.
The instruction requested should have been given. It is true that this boy driving the horse was some 3 months under 12 years of age; but from his own testimony it is clear that he understood the dangers in crossing the railroad track as well as any adult would have understood them. He lived nearby, and had made this crossing frequently, not only on foot, but driving as he was this day. He knew fully the necessity of
Judgment must be reversed, and no new trial ordered.