McCullough v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

Hooker, J.

Defendant appeals from a judgment obtained at the circuit for an injury sustained near defendant’s railway, at its crossing of a highway.

Plaintiff was riding in a cutter with her husband, upon a highway that was nearly parallel with defendant’s track for about three-fourths of a mile, varying in distance from the track from 35 to 200 feet. This highway finally crossed the track, near the place of the accident, at an angle of about 45 degrees. To the east of this crossing was a sharp curve around a hill which lay to the eastward of the highway, rendering it impossible to see the train approaching from the east, from any point upon the highway, until the line of the right of way was crossed. Plaintiff was approaching this crossing, and just at the line of the right of way the train came into view something less than 300 feet distant from the crossing. The horse turned about, and ran away, upsetting the cutter, *237 and injuring the plaintiff. The negligence relied on was a failure to give the statutory signals.

The counsel for defendant contend that the court should have directed a verdict against the plaintiff, for two reasons:

1. Because the testimony conclusively showed that the signals were given.

2. Because the plaintiff and her husband did not stop and listen before reaching the point where the accident occurred.

Were we to pass upon the question of fact, we should say that the giving of the signals was established by a preponderance of the evidence, but we cannot say that there was no evidence to the contrary. Plaintiff and her husband both testify that they were listening, — the horse having been brought to a walk, — and that they heard none, and that it was a calm day. William Howard, who was on the train, testified positively that they were not given. In the light of this testimony, we think it plainly a question for the jury. 1

Should the judge have held that, under the facts shown, it was the duty of plaintiff’s husband to stop and listen before getting so near the railway crossing that his horse might be frightened at the approach of the train? The husband testified that he waited two hours to make sure that the train had passed; that he inquired, and was told that it had, and so believed. This testimony indicates that he did not like to meet the train upon the parallel road, though he testifies that he had done so without accident, and would not have expected an accident had he met it on this occasion. On the other hand, it shows some effort to avoid accident. It has been held in many cases that, before venturing upon a track where the view of an *238 approaching train is cut off, the traveler should stop and listen, but we are cited to no case where the doctrine is applied when the driver is at a distance from the track, and the injury results from the fright of the horse. There is a difference between the risks attendant upon the upsetting of a vehicle and those involved in a railway collision. The latter always occurs if the traveler is on the track at the right time, and the results are so uniformly disastrous to those who venture as to leave no room for a difference of opinion about the propriety of taking any chances. In the other case there is more room for a difference of opinion. 'First, the consequences are not usually so serious. Much depends on the disposition and character of the horse and the proficiency of the driver, while the width and condition of the highway are* matters to be considered. It is said that the plaintiff would have been no better off had she been at any other point upon the highway for a distance of three-fourths of a mile. Had he seen the train or heard the signals in time, the driver might have turned his horse around, or taken him by the head, or driven him up to a fence, or taken some other means for the personal safety of himself and wife. We do not feel warranted in saying that it was negligent for the plaintiff’s husband to drive within 35 feet of this track without stopping to listen, lest he take the chances of being upset. On the other hand, we have no occasion to say that it was not. The question was for the jury to apply the test of what an ordinarily prudent and careful man would do under just such circumstances as these, and determine whether the conduct of the plaintiff and her husband was negligent or not.

Defendant complains that the plaintiff’s husband was permitted to testify that the horse was frightened by the train, upon the ground that the question was for the jury, and that the evidence involved a conclusion. In Geveke v. *239 Railroad Co., 57 Mich. 589 , such evidence was held competent, where the horses were immediately in front of a locomotive when the engineer allowed steam to escape from its cylinders; and in this case the other evidence clearly shows the cause of the fright of the horse, and the opinion of the witness, if inadmissible, worked no injury to the defendant.

In the course of his charge the court said:

“ Some of plaintiff’s witnesses have testified that they were looking and listening for approaching trains, and that if the whistle had been blown, and the bell had been rung, as 'required by law, they could and would have heard them."

This is said to be error, for the reason that no witness so testified, and, furthermore, such testimony had been excluded upon the ground that it was opinion evidence, and the question one for the jury, and not for the witness.

It is not uncommon for trains to pass, giving signals, without notice on the part of bystanders. It is, in such cases, a matter of inattention; and, if one does not notice them, abont all that can ordinarily be said is that he did not notice or hear them. Such evidence is negative testimony, unless there be something in the circumstances tending to show a probability that they would have been heard if given. 1 No witness who was looking and listening for the train testified, that he could and would have heard these signals had they been given. The witness Howard, who swears positively that the signals were not given, did not say that he was listening for the whistle, ■and manifestly he was not looking for the train upon which he was riding. No witness was allowed to say that he could and would have heard them, though several were evidently within hearing distance. Whether their testi *240 mony was more than negative testimony or not, it was certainly allowed to go to the jury as positive evidence when they were told that the witnesses had testified that they were looking and listening for the train, and could and would have heard the signals had they been given. We think counsel owed it to the court to call attention to this misstatement, which was doubtless inadvertent, at the time it was made. But the statute 1 abolishing the salutary rule requiring exceptions to be taken to the charge before verdict, while the court has an opportunity to correct any errors that he may have made, permits error to be assigned' after verdict; and, as this was clearly prejudicial, we feel constrained to reverse the judgment, and order a new trial.

The other Justices concurred.

In answer to a special question, the jury found that the signals were not given.

See Sanborn v. Railroad Co., 99 Mich. 1 , and note.