Webster v. Hitchcock 11 Mich. 56.. 181 Weinstein v. Patrick 75 N. C. 344.. 20 Welch v. Ware, 32 Mich. 77......

578 Westchester Fire Ins. Co. v. Earle 33 Mich. 143....

OCTOBER TERM 1881.*

GILBERT MARCOTT, ADM'R V. MARQUETTE, HOUGHTON &
ONTONAGON RAILROAD COMPANY:

Rulings on questions of fact-Negligent injury-Taking case from jury— Credit of witnesses-Lookout on locomotive-Speed of trains-Fencing railroad tracks.

Rulings cannot be made on error on questions of fact, or on questions
of law that have not been decided against the plaintiff in error, and
if such rulings have been made, they cannot bind the action of the
jury on a new trial.
Negligence in injuries inflicted by railroad trains upon individuals is a
question that depends upon the circumstances and can rarely, if
ever, be absolutely defined as matter of law; and in determining
whether there has been negligence all the circumstances must be
considered together.

The care required of all persons doing business involving danger, must
be such as is reasonably calculated to avoid serious consequences
therefrom, so that if there are such consequences they may be con-
sidered as accidental only.

In an action for negligent injury negligence which did not contribute to the injury need not be regarded.

A case cannot be taken from the jury unless it is plain upon the strongest showing made by any of the witnesses, that there is no cause of action.

A case must be absolutely free from conflict before it can be taken from
the jury.

Courts cannot assume that witnesses whom they most credit will be fol-
lowed by the jury, and no matter how dissatisfied a court may be
with the conclusions of the jury, it cannot usurp their functions.
The lookout upon a locomotive must be as efficient as the circumstances
require, and especially so when the chances of access to the track
are greater than usual.

It is a question for the jury whether a special train can be run without
negligence at such a speed as to make it difficult to check its speed
within a reasonable time and distance.

*Continued from Vol. 46.

47 MICH.-1

A railroad train ran over a child on the track. It appeared that there were visitors in the cab of the engine, and that the presence of strangers without leave was prohibited by rule. Held, that it was proper for the jury to consider the fact with other circumstances as bearing on the question of negligence.

The statutory regulations concerning the fencing of railways apply north of Saginaw river except that the statutory penalty for neglecting to build them is not in force. Act 98 of 1875.

Error to Marquette.

October 12.

Submitted June 24. Decided

CASE. Plaintiff brings error.

Reversed.

There can be no con

W. P. Healy for plaintiff in error. viction of negligence for allowing visitors in a locomotive cab on proof only that they might have obstructed the engineer's view: Quincy Mining Co. v. Kitts 42 Mich. 41; a railroad company is not liable for running over a child that is using its track as a play ground unless it does so maliciously or with gross carelessness: Morrissey v. Eastern R. R. 126 Mass. 377; Illinois Cent. R. R. v. Godfrey 71 Ill. 500; Railroad Co. v. McLaughlin 47 Ill. 265; nor where the child's parents are careless in looking after it: Jeffer sonville R. R. v. Bowen 40 Ind. 545; T. W. & W. Ry. v. Grable 88 Ill. 442.

F. O. Clark for defendant in error. A case can be taken from the jury only where it is open to but one opinion: Jucker v. C. & N. W. Ry. 52 Wis. 150; Improvement Co. v. Munson 14 Wal. 448; Teipel v. Hilsendegen 44 Mich. 461; railroad trains should run through cities and villages at such moderate speed as to be under immediate control: Costello v. Syracuse B. R. R. 65 Barb. 92: 12 Am. L. Reg. N. S. 666; Daley v. Nor. & Worcester R. R. 26 Conn. 595; railroad companies are bound to take the greatest precautions for the safety of life: Chic. & Alton R. R. v. Gregory 58 Ill. 228; persons conducting an unusually hazardous business must use all known means to avoid accidents: Sherm. & Redf. Negligence §7; parents are not negligent in not keeping constant watch over children:

Kay v. Penn. R. R. 65 Penn. St. 269: 3 Amer. 635; Chicago v. Major 18 Ill. 349; Chicago v. Hessing 9 Chic. L. News 180; Mangam v. B. R. Co. 38 N. Y. 455; O'Mara v. H. R. R. R. Co. id. 445; Railroad Co. v. Gladmon 15 Wal. 408.

CAMPBELL, J. Plaintiff in error sued defendants for the death of his child, a little boy of two and a half years old, who was killed by an irregular train consisting of a locomotive and a single car of invited guests on an excursion from Marquette down the line. The train had just passed by Champion station, and the boy was killed at a point 1800 feet west of it, between 10 and 11 o'clock of the morning of September 20, 1877.

It appears that the child and a brother not more than two years older were walking on the track westward, and nearly opposite plaintiff's house, when the older boy was in some manner startled by the approach of the train and tried to get his little brother off, but the latter fell and he could not. It appears further that a neighbor named La Coss who lived across the track a little westward from plaintiff was sitting on his steps at work, with his back to the road, when his wife called to him that the children were on the track, and he rushed at once and signalled the train by throwing up his arms, and ran to save the children. The oldest was off and he had reached within five feet of the place, when the train struck the youngest and fatally injured him in the head. It is not shown by the record-which does not set out all the testimony-whether the child was thrown from the track, or whether the train passed over him. The whistle to put on brakes was blown, as La Coss testifies, about 215 feet from the place of the injury. The train ran 900 feet further before it stopped. The distance traversed by La Coss was 175 feet. He testifies that when he first started and saw the children the train was on the switch west of the depot. The testimony is that the place of injury was 1800 feet from the depot, and that the switch enters the main track between 600 and 700 feet from the

depot, or between 1100 and 1200 feet from the place of the injury.

No one on the train appears to have known what had occurred, until it reached a station several miles further off, to which the news was transmitted. The engineer and fireman did not, so far as appears, or is claimed, see the children or either of them, and no inquiry was made at the time into the cause of stoppage. The track was level and objects on it could be seen, according to the testimony, from a quarter of a mile east of the depot, or something over half a mile eastward from the place of the injury, and for about the same distance westward. The track was not fenced. Several houses were scattered along the road between the depot and plaintiff, who occupied the most westerly of them all, and who at the time of the injury was at work on the road about a mile west of his house, as section foreman of the road. The action being based on the negligence of the defendants' servants, in not using such care as was incumbent on them under the circumstances, the facts set out calling for care, and the failure to use it, were in brief the unfenced road, the omission to give signals, the excessive speed of the train, the lack of adequate means of stoppage, the failure to keep such a lookout as should have been kept, and the existence of special hindrances to a vigilant lookout in the presence of strangers in the cab of the locomotive, whose being there tended to interfere with the view and to distract the attention of the engineer and fireman.

The circuit judge, while himself of opinion that there was evidence for the jury on several matters of importance, took the case away from them, and directed a verdict for the defendants, and did this on the ground that this Court had on a previous hearing on error declared there was nonegligence apparent from the record as then made up, and that if there was none in those respects, the evidence of the presence of the visitors was not by itself sufficient to show a cause of action.

Before considering the questions presented by the present record, it is necessary to refer a moment to the misappre