Robins v. Director General of Railroads

Moore, J. This suit was commenced to recover damages because of the death of plaintiff’s son who was killed in the city of Hudson at the intersection of the tracks of the New York Central Railroad Company and Market street. The negligence charged was the running of its passenger train across Market street at an excessive rate of speed and in not maintaining at said crossing a properly equipped electric bell. It is also charged that the engineer and fireman were not keeping a proper lookout. The population of the city of Hudson is about 2,800, and the Market street crossing is near the central part of the city and near [439] the center of population, and within two blocks of the business center. Theodore James Robins on the date of his death was five years, two months, and eight days old. He was a bright, active boy in good health. At the time of the accident, Mr. and Mrs. Robins were living in Detroit. They were returning to Hudson to live and had shipped some of their goods there. Mrs, Robins with her children was stopping at the Brant Hotel which is situate on Market street about 80 feet south of the tracks of the New York Central railroad. At the Market street crossing the railroad company had maintained an electric bell. It was claimed this bell was out of order, that it would nearly always ring when trains were approaching from the west, but from the east it seldom rang and on the day of the accident the plaintiff contended and submitted proof that on the approach of the train this electric bell was not ringing. It is claimed that just prior to the accident the mother of decedent was upon the porch of the hotel unpacking some goods and decedent and his little brother were in a swing upon the porch of the hotel, that about 10 minutes before the accident the mother stepped into the office of the hotel and was there at the time of the accident. It is claimed the train which killed the boy was about 10 minutes late. It consisted of a locomotive and 7 or 8 coaches, and it is claimed it did not slow down for the Market street crossing, but rah across the street in question at a speed estimated by witnesses for the plaintiff at 40 to 60 miles an hour. Just before the accident the decedent and his little brother were seen upon the sidewalk between the hotel and the railroad track. Two men crossed the track just in front of the train on the east side of Market street, and an older man passed in front of the train on the west side of Market street, and decedent followed him across the track and was struck [440] by the locomotive when near the north side of thp track and instantly killed. Several written requests were preferred by defendant all of which were given except two, which asked for a directed verdict. The jury returned a verdict for the plaintiff for $1,275. Defendant made a motion for a new trial which was overruled. The case is brought here by writ of error. We quote from the brief of counsel for appellant: “The principal and meritorious questions in the case are these: “(1) Was the accident not due to the sudden and unanticipated act of the child, an act that the railroad company could not foresee or provide against? “(2) Was the mother of deceased not guilty of contributory negligence such as to preclude recovery? “(3) Was the railroad company guilty of any negligence that was the proximate cause of the accident? “(4) Was there any evidence upon which a jury could base a verdict for damages? “(5) Did the court err in permitting the father of deceased to testify as to his financial means? “(6) Was the verdict not against the great weight of the evidence? “(7) Did the court not err in permitting plaintiff to amend her declaration by adding the question of lookout as a, ground of negligence?” It is claimed by defendant that it was the sudden and unanticipated act of the boy and no act of negligence of the defendant that caused the accident, counsel citing Hoover v. Railway Co., 188 Mich. 313, and Coessens v. Railway, 136 Mich. 481, and Czarniski v. Transfer Co., 204 Mich. 276. A reference to the earliest of these cases will show that it was held that the car was running at a lawful rate of speed, which differentiates it from the instant case, as made by the testimony on the part of the plaintiff. In the case of Hoover v. Railway Co., supra, the child was killed while a trespasser in the station yard of the railroad [441] company. A different case from the one before us. There is some language in the opinion that may be helpful here: “Back of that lies the rule that at places where there is reason to anticipate that persons, including children, may be upon the track, as in cities and towns, the train cannot be operated upon the presumption that the track is clear and need not be watched, but a proper lookout must be maintained with that degree of care which a person of ordinary prudence and caution, having in mind both the safety of the train with its passengers and persons ahead likely to be injured by it, would commonly exercise under like circumstances, according to the probability of danger at the portion of the track being traversed.” In the other case cited it was held to be a question for the jury whether defendant was negligent. In the instant ease there was a great deal of testimony that the train was run at a high rate of speed at a crossing frequented by hundreds of pedestrians daily, including children, with a crossing bell out of order so that it did not ring. This feature of the case is governed by Nissly v. Railway Co., 168 Mich. 676 (Ann. Cas. 1913C, 719). There is a full discussion of the rights of an infant and the duty of a railway company in the case of Huggett v. Erb, 182 Mich. 524 (Ann. Cas. 1916B, 352), with a citation of many authorities; Block v. Railroad Co., 202 Mich. 341; Fischer v. Railway Co., 203 Mich. 668; and Green v. Railway Co., 110 Mich. 648. The last case also holds that the mother should not be held as a matter of law to be guilty of contributory negligence. Was it error to allow the father to testify to his financial ability? The court cautioned the jury that this testimony could only be used as bearing upon the probability of the child being put to work earning money for the father. We think with the limitations put upon the testimony it was not reversible error. [442] Was the verdict so large it ought to be set aside? The case of Black v. Railroad Co., 146 Mich. 568, justifies the amount of the verdict. The case was tried with great care. We discover no reversible error. The judgment is affirmed with costs to the plaintiff. Bird, C. J., and Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. The late Justice Ostrander took no part in this decision.