Brunick v. Ann Arbor Railroad

Montgomery, J. This is an action on the case, brought by Everett Brunick against the Ann Arbor Railroad Company, to recover the value of certain cattle killed by a wild engine on a highway crossing in the township of Richland. The whole case turns upon the question of contributory negligence, and there is practically nothing else involved, so far as the hearing in this court is concerned. On this particular evening the plaintiff’s cattle were being driven along the highway by his two sons. When they came to this crossing, the cattle stopped to drink at a pond in the highway near the railroad track, and the boys waited for them to come out and proceed homeward. When they had finished drinking, they returned to the highway, and pursued their course, cattle fashion, one behind the other. When about half of them were over the track, this wild engine suddenly appeared, and struck them amidships, so to speak, killing some' five or six of them, but leaving unharmed the cattle at either end of the procession. It was the claim of the plaintiff that the boys were so situated that they could and would have been able to clear the track of these cattle in time for the engine to pass "had the bell been rung and the whistle sounded in accordance with the statute, and that they were on the lookout for danger, and were exercising all the care possible with a large herd of cattle, and that the sole cause of the accident was the negligence of the trainmen in failing to give the proper warning of their approach. The defendant claimed that the boys were negligent in not going onto the track, and -there waiting until the cattle had all passed. The circuit judge took this latter view of the case, and directed a verdict of no cause of action. The error complained of is in not leaving the question to the jury to say whether or not the boys were exercising ordinary care in the management of these cattle, and whether or not they were so situated that they could have prevented the accident had the proper signals been given. We think the case presented a question of fact for the jury. The case is quite different from one of an attempt [221] to cross a track with a team of horses, which the driver is presumed to have in hand and be able to control. There was no noise of a wagon to prevent these boys from hearing an approaching train. It is true, their view was obscured, but, had they gone to the track and looked when the cattle stopped to drink, and then returned to drive the cattle across the track, it is not clear that this precaution would have prevented the injury. True, the defendant’s witnesses testify that the approaching engine could have been seen two miles away, as it passed Lucas: but, had they gone to the track to look when the cattle first stopped to drink, and then returned to drive the cattle, it is probable that they would not have seen the approaching engine. It was a still night, and they relied upon their sense of hearing and their knowledge that no train was due. The jury might have been justified in saying that this was negligent, but we think the question was for the jury. A case directly in point is Bates v. Railroad Co., 4 S. Dak. 394 (57 N. W. 72). See, also, Snook v. Clark, 20 Mont. 230 (50 Pac. 718); 2 Thomp. Neg. (2d Ed.) § 2011. Judgment will be reversed, and a new trial ordered. Hooker, C. J., Moore and Carpenter, JJ., concurred with Montgomery, J.