Michigan Central Railroad v. Anderson

Campbell, Ch. J. Errors are assigned on rulings and charges of the Court upon the trial. A witness having testified and been allowed to leave the stand, several witnesses on the other side were called to show that he could not have been able to see certain things from a place where it was claimed he had said he was, at the time when he observed the circumstances which he narrated. An application was then made to allow him to take the stand to show that he had not stated what was assumed, and that he had been misunderstood, and to show what he had said, or intended and supposed he said. This was not allowed. There is certainly power in a Court to allow a witness to be recalled at his own request, or otherwise to explain his testimony and to correct alleged misapprehensions as to what he has said or meant, and it is often a very necessary power to prevent injustice. But we. have not found any authority rendering it imperative on courts to permit it. The jury are expected to remember what has been sworn to, and the correction will not supersede their conviction of [253] the original statements, unless they are satisfied it ought to do so. We cannot, therefore, hold that there has been any error in law on this question, and we have no power to review the discretion of the Circuit Judge. The action was brought against the railroad company for negligence in causing the sorghum factory of Anderson to be burned by sparks from their engines passing along the railroad, which was separated by a highway and some intervening ground from the premises destroyed, which had upon them about the factory a considerable amount of dry and combustible stalks and similar material. The Court, under objection, charged the jury that regard must be had to the actual state of things at the time; the force and direction of the'wind; the dryness of the weather; and the proximity of the building to the railroad; and that what might be ordinary care on a still and wet day might not be on a windy and dry one, and when near to combustible matter. The question still being what care a prudent man would exercise in precisely similar circumstances. There had been full testimony in the case upon the character of the engines and stacks, and the use of the proper means to render them as secure as possible from doing mischief by the discharge of sparks, and this charge was independent of any question as to the quality and character of these equipments, as suitable to be used. We think the rule laid down was incorrect. Vehicles that can choose their track, and can deviate whenever and wherever it is desired, may properly be required to be used differently, according to circumstances. But the necessity of running- railroad cars with regularity and uniformity is not a matter of convenience merely. The business cannot be done at all, unless calculations are made upon the movements of trains. And the risks attendant upon a disturbance of that regularity are risks of human life, and not mere business delays. It would not only be vexatious, but [254] in the highest degree dangerous to make the movements of cars vary with wind and weather. Those who establish themselves in the neighborhood of railroads must know that the trains are expected to run with regularity, and if there are special risks arising from no want of care in the proper equipment and management of engines and trains, those risks are not chargeable ’ to the railroad, but are incident to the situation. And extra care which they demand, must therefore devolve upon those whose interests require the increased vigilance; and the consequences of not exercising "it must fall upon the owner, because the railroad is not in fault. We think the judgment must be reversed on this ground. The other questions, so far as they are material, depend upon very similar considerations, and what we have said will probably be sufficient to prevent any misapprehension upon any of them likely to arise in another trial. We do not think it necessary to consider them farther. Christiancy and Graves, JJ. concurred. Cooley, J. As applicable to the circumstances of this case, I think the charge complained of was calculated to mislead, and therefore I concur in the reversal.