Fehnrich ex rel. Fehnrich v. Michigan Central Railroad

Morse, J. The plaintiff, a boy about 14 years of age when the accident happened, brought this suit to recover damages for injuries received by him while upon defendant’s track in a public street in the city of Jackson. The court took the case from the jury on the ground of the contributory negligence of the plaintiff. The injury occurred September 19, 1887. The boy — 608 — could not speak or understand English very well, having arrived in this country from Germany in the latter part of July, 1887. He was 11 years of age in June of that year.' He was living with his uncle, and had started to go to his place of work ,in the north-western part of the city. He was hurt while crossing the railroad tracks on Park avenue. There are several tracks crossing the street at this point. As he approached the crossing, he saw an engine and tender on the east side of the street, and close to it, standing still, and one man with it. The tender was nearest the street, and there was some testimony tending to show that the tender stood in the •street. • He was walking nearly in the center of the street, intending, as he says, to cross the tracks, passing around the east end of the depot out on Main street, thence westerly and north-westerly to his work; but changed his mind while crossing the tracks, and concluded to go from the street he was on to Main street, along the platform on the south side of the depot. As this thought came in his mind, he stepped between the rails of the track upon which was this engine and tender, and, with his back to the tender, took two or three steps up the track to the west. While he was on the track the engine backed up, started quickly, and came towards him. When he saw it, he says he was “rattled,” and jumped first to the left and then to the right. The tender caught him by the heel. He was dragged some distance. One leg was cut off, the other foot was crushed, and he received some other injuries. He testified that no whistle was blown or bell rung before the engine started, and he did not hear it coming until it was right upon him. In this he is corroborated by two witnesses, —one who was a switchman in the employ of the defendant at the time of the accident, and the- other also a switchman. Both saw the accident, and testified that no — 609 — whistle was blown or bell rung when the engine backed upon plaintiff. One said: “The engine is pretty quick. It responds quickly to the action of the engineer. A yard-engine is quicker than an engine used to pull trains.” t Park avenue runs in a northerly and southerly direction, and the passenger or station house of the defendant extends out into what would be such avenue if it ran in a-straight course. But north of the railroad crossing it bears to the east, and passes around the station-house. Main street .intersects Park avenue about 16 rods north of the east end of the passenger-house, and also crosses-the railroad tracks a short distance north-westerly of the passenger-house or depot, and about 20 rods northwesterly of Park-avenue crossing; the said tracks, Park avenue, and Main street forming a triangle. There was no sidewalk along the west side of Park avenue next the depot building, and no platform on the east end of said building, but one on the south side. Therefore, when the plaintiff started to change his direction, he was taking a shorter out, and was also influenced probably by this platform. It is contended, in support of the direction of the circuit judge, that the plaintiff had lived in Germany, in a town where there was a railroad; that he knew the danger of a railroad crossing; that he was a boy of average intelligence, and had no business to turn his back to the engine and walk upon the track as he did; that this was not ordinary prudence. It is also claimed that he was a trespasser upon defendant's tracks. This claim is based upon the fact that, although in a public highway, he had turned to go-off from it, and was using the street, not as a traveler along and upon Park avenue, but was taking the track — 610 — of the company to get off the street on a more direct route than the avenue to his work, and was traveling without reference to the public streets. It is said in the brief: “If in coming along the street onto defendant’s tracks he enjoyed the rights of a traveler, he had ceased to exercise those rights.” I think the plaintiff had an undoubted right to use this street for the purpose of travel to his work, and he would not be a trespasser in walking upon any part of it, or in getting off. of it in any direction or way that he saw fit. He might be negligent in walking between the tracks of the defendant, but he could not be a trespasser while in the pursuit of his lawful business. I do not understand that the defendant has such an ownership in its tracks upon a public street crossing that a man is a trespasser unless he travels squarely across them. The case of Kelly v. Railroad Co., 65 Mich. 186, is relied upon to sustain this claim that the plaintiff was trespassing upon the defendant’s right of way at the time he was run over. In that case, Kelly was not using the highway as the plaintiff was. It is true, he was struck while on Yinewood avenue, but he had not entered the avenue for the purposes of travel. He was simply crossing the street because it came in his way while he was traveling on the railroad track, when he knew that men had been placed at the crossings to warn people from traveling on the railroad tracks. Kelly left his home, and chose his route upon the railroad track, and had traveled upon it from a quarter to half a mile before he reached Yinewood avenue, and contemplated walking beyond the crossing upon the track to the shops where he worked. He was traveling on the track, and not on the street. “His meeting the engine at that particular spot was a mere coincidence.” If the language used in — 611 — the majority opinion in the Kelly case is to be so con-' strued that a man, while walking in the street, cannot go diagonally across a railroad crossing, or, if he wishes to leave the street at that point, cannot walk between the railroad tracks in so doing, without being a trespasser, then I must respectfully decline to be bound by it. In Kelly’s case the decision of the Court rested upon the peculiar facts of his case, that he was not using the street for travel at all, but was walking on the company’s right of way, and was no more walking in the highway than he would have been in a field or wood through which the railroad track passed. The highway was not his road, but a crossing of his road, over which he was passing because it came in his way, and for no other reason. ,. I also think that the question of the contributory negligence of the plaintiff was for the jury. The knowledge that he had of railroads was meagre, and he might well have supposed, considering his age, that the engine would not start up and cross the street without some signal of danger or warning of its approach. It is for a jury to determine his ability and capacity for understanding the danger, and whether he used such ability and capacity prudently for one of his years and under all the circumstances of the case. It seems he only took two or three steps between the rails, and there is no evidence that he intended to keep upon this track after he left the highway. He thought to take a short cut, and started for the platform, and to reach it he would soon have been obliged to leave the track. "Whether it was careless to take these two or three steps even, with his back to a standing engine, is something not in the province of a court to declare as a matter of law. I doubt if it would have been negligence as a matter of law in an adult, but — 612 — in the case of this boy it is a question to be settled by 12 men. The case of Bird v. Railroad Co., 86 Mich. 79, cited by defendant's counsel, does not apply. In that case the deceased was killed in attempting to climb over the bumpers between the cars. It has never yet, I think, been announced as negligence per se to cross the railroad track in a public highway either in the front or rear of a standing engine and tender; and whether it is negligence to turn one's back upon the rear of such engine and tender, and take a few steps away from them, seems to me to depend upon the circumstances of the particular case in which it is done, and, if so, the determination of the question is very appropriately one for a jury. It is also contended that, if the plaintiff had not been “rattled,” he might have escaped. One put suddenly in peril is not required imperatively to do that which, after the peril is ended, it is seen he might have done and escaped. The law makes allowance for the fright and lack of coolness of judgment incident to such peril. It would be absurd to require of this boy, when he saw and heard-the car upon him, and was suddenly called upon to decide how he should escape it, to exercise the same coolness and forethought that an uninterested by-stander might manifest. Strand v. Railway Co., 64 Mich. 219. Under our own decisions, this case should have gone to the jury. Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 100; Cooper v. Railway Co., 66 Id. 261; Hassenyer v. Railroad Co., 48 Id. 205. In stating the facts of this case, regard has been had only to the evidence on the part of the plaintiff. If the witnesses for the defense are to be believed, there is no question but the plaintiff was negligent. But the truth of the issue made in the record is for a jury to deter — 613 — minej and on the plaintiff's showing there is certainly made a case upon which reasonable men might fairly differ in passing upon the question of his negligence. The judgment is reversed, and a new trial granted, with costs of this Court to plaintiff. McGrath and Long, JJ., concurred with Morse, J.