70 Mich. 620 | Mich. | 1888
Plaintiff brought suit before a justice of the peace to recover damages for killing a cow belonging to plaintiff, and recovered a judgment. The defendant appealed to the circuit court, where the case was tried by a jury, who rendered a verdict for plaintiff.
There is no dispute that the cow was running at large in the village of Alba, Antrim county, on June 19, 1886, and that she entered upon defendant’s right of way at a point about 18 rods south of the depot building, and, while walking north upon the main track, was struck and killed by the locomotive of a passenger train. The premises of the defendant were not fenced at the point where the cow entered upon defendant’s right of way. The defense is that the point where the cow entered upon defendant’s premises was part of the depot grounds of the defendant at Alba, and that the defendant was not required to fence there.
The liability of defendant is predicated upon its negligence in not maintaining and having fences and cattle-guards on and along its right of way where the animal entered upon its premises.
The facts which determine the rights of the parties to this suit are undisputed. The station or depot grounds at Alba extend from a point at or near the highway crossing, on the north of the depot building, to a point 18 or 30 rods south of such building, at least as far south as the switch of the side track on the east side of the main line. There was testimony which showed that logs were piled even further south of the switch on the west side of the track to be loaded on cars. The space along the switch had been used to pile lumber, and load the same upon the cars for shipment, as far south as to within six rods of a certain fence called the “ Stevens Fence,” which united with the fence along defendant’s right of way south of its station grounds. A portion of this space was used for the passage of teams in hauling logs. The cow entered upon defendant’s right of way north of the switch.
The court erred. The criterion is not whether all the grounds set apart for depot and station purposes have been actually used, but whether, in view of the present or prospective needs of such grounds for station or depot purposes, the company has used a reasonable discretion in throwing them open for that purpose. Where, as in this case, the testimony shows, without dispute and beyond question, that the station grounds are not unreasonably extensive for the accommodation of the public, and of the patrons of the road at that place, and that the animal entered upon the premises ■of defendant within the limits of its station grounds, the court should not have submitted the question of the extent of such grounds to the jury, for the reason that, the facts being undisputed, it became a question of law for the court whether the defendant was liable.
The principles laid down in McGrath v. Railroad Co., 57 Mich. 555 (24 N. W. Rep. 854), rules this case, and the court should have granted the request of defendant’s attorney, and
The judgment must be reversed, with costs of both courts .to defendant, and a new trial granted.