Shufelt v. Flint & Pere Marquette Railroad

Grant, J. I concur witb my Brother Montgomery that there was no negligence in the rate of speed of the defendant’s train, or in the piling of the wood along its track. I think the circuit judge was correct in directing a verdict for the defendant. 1. The plaintiff’s wife was herself guilty' of contributory — 328 — negligence. The road was dry and hard. She had two horses, and a lumber wagon with a box, and a spring seat fixed upon the box. She did not stop her team to listen. She had been for a long time familiar with the crossing, and had frequently driven over it. When upon the little rise of ground from 90 to 100 feet from the crossing, she looked to the west, and saw no train approaching. The horses were accustomed to the cars, and were not afraid. They were farm horses. She said she was on a slow walk. She did not stojr, and the horses stepped upon the track just as the train struck them. If the woodpile, from the rise of ground to the track, obstructed her view of the approaching train, it was her duty to stop and listen when nearer the track. Had she stojtped upon the rise of ground, it is quite probable that she would have heard the train. She testified: “I did not stand still. My horses were on a walk, and when I got there I pulled on the linés, and came almost to a standstill, and looked, and listened if I could hear the cars, and I did not hear them, so I went along. I was on a slow walk. * * * I did not stop. I drove right onto the crossing. The horses were between the rails when I first saw the train. When I got on the track the train was right there.” She did not listen for any train or signals, from the rise of ground to the track. She evidently assumed that there was no danger of the approach of a train before she could get across. In this she was not in the exercise of common prudence, either for her own safety, or that of those traveling upon the railroad. Van Auken v. Railway Co., ante, 307, and authorities there cited. But, according to the evidence of her own witnesses, •when she came within 20 feet of the track she could have seen the train, had she looked. It is no excuse to say that she was looking to the east. The track to the east Was in plain view for some distance back from the cross — 329 — ing. The danger, if any, was from the other direction. She could, however, have looked both ways in an instant, and had ample time to stop within 20 feet. 'While she was Avalking her team, according to her own testimony, less than 100 feet, the train, which Avas running at 'a laAvful rate of speed, ran about 80 rods. Passengers upon the highway must be charged Avith knoAvledge of the lawful rate of speed at which trains may run, and must govern themselves accordingly. Trains are not limited in the rate of speed they may run in the country, and across the public highways, where the travel is limited. The •commerce of the country demands rapid! transit. Robinson v. Railroad Co., 79 Mich. 328. These trains must run where the view is obstructed by cuts, by embankments, by trees, and other things. He who does not choose to stop and listen, where he cannot see, must suffer the consequences of his own negligence. My OAvn vieAVS of the duties of travelers upon the highway, in approaching railroad crossings when they cannot see, are fully expressed in Van Auken v. Railway Co., supra, and the authorities there cited. 2. The court Avas, in my judgment, correct in holding that it Avas conclusively established by the evidence that the statutory signals were given. I deem it proper to refer to the entire testimony in the case on this point, and the circumstances surrounding each witness who has testified thereto, in order that there may be no misapprehension of the facts to which the law is to be applied. Mrs. Shufelt's testimony amounts simply to this: That, if the signals Avere given, she did not hear them. The only reason she had for saying that they Avere not given was because she did not hear them. She was in the midst of the noise made by two horses and a lumber wagon traveling over a hard road, and did not listen from the time she left the rise of ground until she reached the track. — 330 — Miles J. McKay was sitting on his horse, 30 or 40 rods south of the crossing, facing west of north, and was watching the train all the time it came around the curve. He was waiting for a man who was coming across a farm near where he stood. His testimony, on direct examination, is: “I did not hear any signal, — whistle or bell.” On cross-examination, he said: “I was not paying particular attention to the whistle and bell; had no occasion, that I know of, particularly.” Yirgil Wells and his brother were driving with a team about half a mile north of the crossing, saw the train come around the curve, and testified: “We did not hear the train whistle or ring any bell.” On cross-examination he said: “I did not hear whistle or bell. They might have sounded. I did not hear them. That is as much as I can say about it.” Cephas Wells was with the last witness at the time. He testified: “I saw the train a minute or two, — a second or two. I did not hear it whistle or ring. We were within hearing distance. I did not notice any indications of a whistle, by a puff of steam or anything. I was watching it as it rounded the curve.” Cross-examination: “I wasn't paying attention to see if the whistle or bell sounded. I wasn't interested. All I can say on that subject is, I didn't hear it.” Timothy Fee was a farmer whose house was about 40 rods west of the highway, and 30 rods south of the railroad. He- was in his field west of his house, cutting corn. He said: “I did not notice the train when it passed. I did not hear it whistle or ring. It is a general occurrence for trains to pass there every day. I paid no attention to the like. I was within hearing distance, but I did not hear it.” Cross-examination: “I paid no attention to the train. I might have seen it, but did not remark it. I can't say I saw it. I don't remember whether I did or not. I won't — 331 — swear it did not ring or whistle either. I did not hear it to draw my attention. Trains pass and repass so frequently I pay no attention, unless they whistle to drive stock off.” Justus Berry lived 80 rods north of the crossing. From his house the railroad is visible from the curve to the crossing. He was at work to the west of his house, and saw the train just as it came out of the curve. He said: “1 can’t say positively whether it whistled or rung, or either. I can always hear them plain, and usually note it; but I can’t say, in regard to that special train, whether it did or didn’t. I don’t remember hearing it. I did when they got down to the crossing. I heard them toot the alarm. I thought it was cattle. They were then behind the woodpile, very close to the crossing, I should judge.” The above is all the evidence on the part of the plaintiff on the subject of signals. The engineer of the train testified positively that he sounded the whistle for the crossing. The fireman and the conductor also testified that the whistle was blown. The conductor testified that the train was behind time; that he had passengers for Grand Bapids, was anxious to make the connection at Beed City, and was listening for the sound of the whistle. The bell was rung automatically, by air; and the fireman testified it was last started at Chase, seven miles west; that it rung continuously from there till the time of the accident; and that he stopped it after the accident. The engineer also testified that the bell was ringing. Joseph Finsterwald was at the depot in Beed City, waiting for this train. He testified that while standing upon the platform he heard the crossing whistle; that at the time it whistled he was walking with another man to the west side of the depot to get a cigar; that on hearing the whistle for the crossing he remarked to his companion that they would not have time to get the cigar; that his companion, — 332 — who was one of the employés of the depot, replied that they would have time, as the train stopped a few minutes. The3r got the cigar, and on their return saw the train standing about half a mile up the track. Nathaniel' Clark, a resident of Reed City, was coming towards the south, on this same road, about 80 rods north of the crossing. He heard the crossing whistle, — two whistles. Shortly after that he heard the whistle again. He was then going up a grade in the road, and the crossing was hidden from his' view. On reaching the top of the grade, he saw the train backing up. He testified: “I know, by sound, the first whistle I heard was for Walker’s crossing. The next would be about at the curve west of the highway. I am positive I heard the whistle, and also heard the bell ring.” Augustus Roberts lived about a hundred rods south of the crossing, Was in his field, sowing grain, and heard a whistle. He said: “It seemed the usual short whistle, and I did not pay any attention to it. It was a locomotive whistle for the crossing.” Afterwards, he saw the train backing up. Samuel Wolfe is a farmer, and has lived in the vicinity 21 years. He was in the smoking car of the train. He testified that he had been noticing the whistles for several crossings west of this one. He heard the whistle foi; this crossing. He wanted to take the train north at Reed City, and knew that this train was late. Louis Barrett lived in Reed City. Was approaching the crossing from the depot at the time. He did not see the train' until it was standing on the track near the crossing. Was familiar with locomotive whistles. Supposed the crossing whistles to be two whistles, — two long blasts. Heard two whistles, and said it might have been more. Marcus Laffler was at the depot, waiting for the train. Was standing between the rails. There was quite a crowd — 333 — upon the platform. He was facing west, watching for the train. Saw steam escape, and then heard the sound of the whistle, after which the train came down, and stopped about half a mile from the depot. There were one or two blasts of the whistle, and the steam sailed to the south. “I saw one puff of steam, and heard a short blast of the whistle, and there were two or three long puffs of steam, and two or three sounds.” John I. Edwards was waiting at the depot to take the train. Walked to the extreme west end of the station, and stood looking west up the track. Heard the usual whistle for the crossing. William Hogan lived at Reed City. Was about 30 or 40 rods east of the crossing. Heard the train coming, and saw it. Heard the whistle, and saw the escaping steam from the whistle. The train was just then rounding the curve west of the crossing. It was the crossing whistle. On cross-examination he said that the first whistle was blown around the curve, where he could not see the curve. He went out for the purpose of driving some cows off the track. John Einkbeiner testified: “Heard the train when it was coming to Reed City. Heard the whistle, but did not know whether it was for the crossing or for the curve.” Fred Kopnick was working in a mill east of the crossing, — the same mill where the two last witnesses were employed. Heard two whistles. Afterwards, he heard another one, and then saw the train backing up. F. 0. McCollum, a physician, was on the train. Had been reading a few days before how they made signals by whistles, and recollected that two toots, followed by two short ones, were the signal for a crossing, and, having nothing else to do coming home, watched all the crossings. He heard two whistles, followed by two short ones, and knew that this was the last crossing before entering Reed — 334 — City. He said: ffI am positive the signal whistle I heard on that train was for that crossing.” George Forest was on the train. Heard the whistle for this crossing. He said it was a regular crossing whistle,— two long and two short. Barlow Davis, postmaster at Evart, was at the depot, standing on the track, when the train came around the curve. He remembered very distinctly that it whistled, and that the whistle he heard was the usual signal for a crossing. Of the six witnesses for plaintiff, not one was paying any attention or listening for the signals. One did not even hear the train. The testimony is purely negative, and of the weakest character. We know from common experience that people usually pay no attention to sounds to which they are daily accustomed. All these witnesses lived for several years in close proximity to this railroad, where these signals were given many times daily. Placing this testimony in the strongest light for plaintiff, and it shows only that these six witnesses were in position where they might have heard the signals, had they been paying attention and listening; but they were not, and therefore they cannot tell whether they were given, as some of them frankly state. The duty to give these signals is imposed by statute, and the presumption is that defendant’s employés performed it. It was therefore incumbent upon plaintiff to overcome this presumption by competent evidence, from which the jury might justly infer the fact that the duty was disregarded. Whether, in the absence of any evidence by defendant, a ease was made for submission to the jury, we need not determine. Of the 16 witnesses who testified for the defendant, 6 were upon the train, were paying attention, and swear positively that the signals were given. Of the other ,10, 8 swear positively that they heard them, and the fair inference from the testimony of the other 2 is that the — 335 — signals they heard were the regular crossing signals. The danger signals are so different from the crossing signals that one would readily note the difference. To submit the ■question to the jury, under this evidence, would be equivalent to saying to them that they might base their verdict upon prejudice, and not upon the facts proven. A verdict for the plaintiff, under this evidence, would be a reproach ■upon the jury that rendered it, and upon the court which permitted it to stand. This precise question was involved in Lake Shore & M. S. R. R. Co. v. Miller, 25 Mich. 274, where the evidence •on the part of the plaintiff was substantially the same as in the present case. The charge of the court substantially ■directed a verdict, and this Court held that if the verdict had been contrary to the instruction the court should have promptly set it aside. It has also been decided by the court of appeals of New York. Culhane v. Railroad Co., 60 N. Y. 137. It is there said: "It is proved by the positive oath of the two individuals •on the engine, one of whom rang it, and by two others, who witnessed the occurrence, and heard the ringing of the bell. The two witnesses for the plaintiff merely say they did not hear the bell, but they do not say that they listened, or gave heed to the presence or absence of that signal. * * * As against positive, affirmative evidence, by credible witnesses, to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it, to .authorize the submission of the question to the jury. It must appear that they were looking, watching, and listening for it, that their attention was directed to the fact, so that the evidence will tend, to some extent, to prove the negative. A mere, 'I did not hear/ is entitled to no weight, in the presence of affirmative evidence that the signal was given, and does not create a conflict of evidence, justifying a submission of the question to the jury as one of fact." Beauchamp v. Mining Co., 50 Mich. 163, is not decisive — 336 — of this case. There is mo similarity in the facts, Avhich are not stated in the opinion. Young Beauchamp was struck by a stone when he was 500 feet from the defendant's mine. No statutory warning was there required. The sole question was not, as in this case, whether the warning was given, but also whether, if given, it was sufficient. There Avas no stated time for these blasts. The warning Avas usually given by the cry of “ Fire " by the miners. If that warning cry was given, still the question remained for the determination of the jury whether it was sufficient. There was evidence tending to show that the warning Avas given from íavo to five minutes before the blast, and Avhile the deceased was in a store a still further distance from the mine, and that Avhen he Avas struck he Avas behind an elevation where he could neither see the mine nor be seen by the miners. The writer of this opinion was the circuit judge before whom that case Avas tried. The issue involved, so far as the notice is concerned, will appear from the folloAving portion of the charge: “ If the defendant cries out from near its mine, ‘ Fire/ it must go further, and cry out in such a way that any persons Avithin reach of where these stones were liable to be thrown would naturally be expected to hear the warning or alarm so given. As to whether such notice Avas given, you Avill take into account the surroundings, the situation, the distance to the road, the place where the boy Avas hit, and whether there was a hill or elevation between him and the place where these men Avere at the mine when the signals were given." The defendant requested the court to charge, not only that the warning cry Avas given, but that it Avas sufficient to Avarn the deceased, who was out of sight, behind an elevation, and these two propositions were united in the same request. The judgment is affirmed.