When, in an action brought against a railroad company in
Michigan by the administrator of a person killed by one of its
trains to recover damages for the killing, the record in this Court
fails to show that any exception was taken at the trial, based upon
the lack of evidence to show that he left someone dependent upon
him for support, or some one who had a reasonable expectation of
receiving some benefit from him during his lifetime, as required by
the laws of that state (Howell's Ann.Stat. §§ 3391,
3392), the objection is not before this Court for
consideration.
The terms "ordinary care," "reasonable prudence," and similar
terms have a relative significance depending upon the special
circumstances and surroundings of the particular case.
When a given state of facts is such that reasonable men may
fairly differ upon the question as to whether there was negligence
or not, the determination of the matter is for the jury; but where
the facts are such that all reasonable men must draw the same
conclusion from them, the question of negligence is one of law, for
the court.
The running of a railroad train within the limits of a city at a
greater speed than is permitted by the city ordinances is a
circumstance from which negligence may be inferred in case an
injury is inflicted upon a person by the train.
Whether ordinary care or reasonable prudence requires a railroad
company to keep a flagman stationed at a crossing that is
especially dangerous is a question of fact for a jury, although in
some cases it has been held to be a question of law for the
court.
Where the statutes of a state make provisions in regard to
flagmen at
Page 144 U. S. 409
crossings, this Court will follow the construction given to such
statutes by its courts, and, so following the decisions of the
courts of the State of Michigan, it is held that the duty to
provide flagmen or gates, or other adequate warnings or appliances,
may exist outside of the statute if the situation of the crossing
reasonably requires it.
The giving of an erroneous instruction which was not prejudicial
to the objecting party is not reversible error.
In an action against a railroad company to recover for injuries
caused by the negligence of its servants the determination of the
fact of whether the person injured was guilty of contributory
negligence is a question of fact for the jury.
In such case, if the proximate and immediate cause of the injury
can be traced to the want of ordinary care and caution in the
person injured, an action for the injury cannot be maintained
unless it further appear that the defendant might, by the exercise
of reasonable care and prudence, have avoided the consequences of
the injured party's negligence.
In determining whether the injured party in such case was guilty
of contributory negligence, the jury is bound to consider all the
facts and circumstances bearing upon the question, and not select
one particular fact or circumstance as controlling the case to the
exclusion of all others.
The case is stated in the opinion.
MR. JUSTICE LAMAR delivered the opinion of the Court.
This was an action by Albert Ives, Jr., as administrator of the
estate of Elijah Smith, deceased, against the Grand Trunk Railway
Company of Canada, a Canadian corporation operating a line of
railroad in Michigan, to recover damages for the alleged wrongful
and negligent killing of plaintiff's intestate, without fault on
his own part, by the railway company at a street crossing in the
City of Detroit. It was commenced in a state court, and was
afterwards removed into the federal court on the ground of diverse
citizenship. The action was brought under §§ 3391 and
3392 of Howell's Annotated Statutes of Michigan, and, as stated in
the declaration, was for the benefit of three daughters and one son
of the deceased, whose names were given.
Page 144 U. S. 410
There was a trial before the court and a jury, resulting in a
verdict and judgment in favor of the plaintiff for $5,000, with
interest from the date of the verdict to the time the judgment was
entered. The plaintiff offered to remit the interest, but the court
refused to allow it to be done. The defendant then sued out this
writ of error.
On the trial the plaintiff, to sustain the issues on his part,
offered evidence tending to prove the following facts: Elijah
Smith, plaintiff's intestate at the time of his death, in May,
1884, was about 75 years of age, and had been residing on a farm, a
few miles out of the City of Detroit, for several years, being
engaged in grape culture. It was his custom to make one or more
trips to the city every day during that period. In going to the
city, he traveled eastwardly on a much traveled road, known as the
"Holden Road," which, continued into the city, becomes an important
and well known street running east and west. Within the limits of
the city, the street was crossed obliquely at a grade, by the
defendant's road and two other parallel roads coming up from the
southwest, which roads, in the language of the defendant's
engineer, curve "away from a person coming down the Holden Road."
At the crossing the Holden Road is sixty-five and one-half feet
wide. The defendant's right of way is forty feet wide, and the
right of way of all the parallel railways at that place is one
hundred sixty feet wide.
For a considerable distance, at least three hundred feet, along
the right side of the road going into the city, there were
obstructions to a view of the railroad consisting of a house known
as the "McLaughlin house," a barn and its attendant outbuildings,
an orchard in full bloom, and, about seventy-six feet from the
defendant's track, another house, known as the "Lawrence house."
Then there were some shrub bushes, or, as described by one witness,
some stunted locust trees and a willow, a short distance from the
line of the right of way. So that it seems from all the evidence
introduced on this point that it was not until a traveler was
within fifteen or twenty feet of the track, and then going up the
grade, that he could get an unobstructed view of the track to the
right. One
Page 144 U. S. 411
witness testified that, if he was in a buggy, his horse would be
within eight feet of the track before he could get a good view of
it in both directions.
On the morning of the fatal accident, Mr. Smith and his wife
were driving down the Holden Road into Detroit in a buggy with the
top raised and with the side curtains either raised or removed.
Opposite the Lawrence house they stopped several minutes,
presumably to listen for any trains that might be passing, and
while there, a train on one of the other roads passed by, going out
of the city. Soon after it had crossed the road, and while the
noise caused by it was still quite distinct, they drove on toward
their destination. Just as they had reached the defendant's track,
and while apparently watching the train that had passed, they were
struck by one of the defendant's trains coming from the right at
the rate of at least twenty -- some of the witnesses say forty --
miles an hour, and were thrown into the air, carried some distance,
and instantly killed. This train was a transfer train between two
junctions, and was not running on any schedule time. The
plaintiff's witnesses agree substantially in saying that the
whistle was not blown for this crossing, nor was the bell rung, and
that no signal whatever of the approach of the train was given
until it was about to strike the buggy in which Mr. Smith and his
wife were riding. The train ran on some four hundred feet or more
after striking Mr. Smith before it could be stopped.
It further appeared that an ordinance of the City of Detroit
required railroad trains within its limits to run at a rate not
exceeding six miles an hour, and it likewise appeared that there
was no flagman or anyone stationed at this crossing to warn
travelers of approaching trains.
Most of the witnesses for the defense, consisting, for the main
part, of its employees aboard the train at the time of the
accident, testified, substantially that the ordinary signals of
blowing the whistle and ringing the bell were given before reaching
the crossing, and that in their opinion the train was not moving
faster than six miles an hour. It must be stated, however, that
some of the defendant's witnesses -- the brakeman,
Page 144 U. S. 412
among others -- would not say that the ordinary signals were
given, nor would they testify that the train was not moving faster
than at the rate prescribed by the city ordinance, and one of its
witnesses, in particular, testified that the train was moving
"about twenty miles an hour, perhaps a little faster."
A witness called by the plaintiff in rebuttal, an engineer of
forty-five years' standing, who was examined as an expert,
testified that if the train ran on, after striking Mr. Smith, the
distance it was said to have gone before it could be stopped, it
must have been going at the rate of twenty-five or thirty miles an
hour, and that if it had been going but six miles an hour, as
claimed by the defendant, it could have been stopped in the length
of the engine, and even without brakes would not have run more than
thirty-five feet if reversed.
The foregoing embraces the substance of all the evidence set
forth in the bill of exceptions on the question of how the fatal
accident occurred, and with respect to the alleged negligence of
the defendant in the premises and also the alleged contributory
negligence of Mr. Smith.
At the close of the testimony, the defendant submitted in
writing a number of requests for instructions to the jury, which,
if they had been given, would have virtually taken the case from
the jury and would have authorized them to bring in a verdict in
its favor. The court refused to give any of them in the language
requested, but gave some of them in a modified form and embraced
others in the general charge. The refusal to give the instructions
requested was excepted to, and exceptions were also noted to
various portions of the charge as given. As those exceptions are
substantially embodied in the assignment of errors, they will not
be further referred to here, but such of them as we deem material
will be considered in a subsequent part of this opinion.
The first point raised by the defendant, and urgently insisted
upon as being embraced in the assignment of errors, is that there
is no evidence in this record that Mr. Smith left anyone dependent
upon him for support, and that therefore no right of action could
be in the plaintiff, as his administrator, under
Page 144 U. S. 413
the Michigan statutes against the defendant for causing his
death.
Sections 3391 and 3392 of Howell's Annotated Statutes of
Michigan, under which this action was brought, provide as
follows:
"SEC. 3391. Whenever the death of a person shall be caused by
wrongful act, neglect, or default of any railroad company, or its
agents, and the act, neglect, or default is such as would (if death
had not ensued) entitle the party injured to maintain an action and
recover damages in respect thereof, then, and in every such case,
the railroad corporation which would have been liable if death had
not ensued shall be liable to an action on the case for damages,
notwithstanding the death of the person so injured, and although
the death shall have been caused under such circumstances as amount
in law to felony."
"SEC. 3392. Every such action shall be brought by and in the
names of the personal representatives of such deceased person, and
the amount recovered in any such action shall be distributed to the
persons, and in the proportion, provided by law in relation to the
distribution of personal property left by persons dying intestate,
and in every such action the jury may gives such amount of damages
as they shall deem fair and just to the persons who may be entitled
to such damages when recovered,
provided nothing herein
contained shall affect any suit or proceedings heretofore commenced
and now pending in any of the courts of this state."
According to the decisions of the Supreme Court of Michigan
bearing upon the construction of these sections, a right of action
will not arise for the negligent killing of a person by a railroad
company unless the deceased left someone dependent upon him for
support or someone who had a reasonable expectation of receiving
some benefit from him during his lifetime.
Chicago &
Northwestern Railway v. Bayfield, 37 Mich. 205;
Van Brunt
v. Railroad Co., 78 Mich. 530;
Cooper v. Lake Shore
&c. Railway, 66 Mich. 261.
But it seems to us that no question concerning this phase of the
case can arise here upon this record. The declaration averred that
the action was brought for the benefit of three
Page 144 U. S. 414
daughters and one son of the deceased, whose names were given,
and the defendant's plea was merely in the nature of a plea of the
general issue, stating simply that the defendant "demands a trial
of the matters set forth in the plaintiff's declaration." It is
true that, so far as appears from this record, the only evidence
with respect to the beneficiaries of the suit named in the
declaration was brought out apparently incidentally, one of
plaintiff's witnesses, Mrs. Briscoe, stating that she was the
daughter of the deceased, and another witness stating that
sometimes Mr. Smith's son went to town to attend to the sale of his
farm products.
We should bear in mind, however, that it is not for this Court
to say that the entire evidence in the case is set forth in the
bill of exceptions, for that would be to presume a direct violation
of a settled rule of practice as regards bills of exceptions,
viz., that a bill of exceptions should contain only so
much of the evidence as may be necessary to explain the bearing of
the rulings of the court upon matters of law in reference to the
questions in dispute between the parties to the case, and which may
relate to exceptions noted at the trial. A bill of exceptions
should not include, nor as a rule does it include, all the evidence
given on the trial upon questions about which there is no
controversy, but which it is necessary to introduce as proof of the
plaintiff's right to bring the action, or of other matters of like
nature. If such evidence be admitted without objection, and no
point be made at the trial with respect to the matter it was
intended to prove, we know of no rule of law which would require
that even the substance of it should be embodied in a bill of
exceptions subsequently taken. On the contrary, to encumber the
record with matter not material to any issue involved has been
repeatedly condemned by this Court as useless and improper.
Pennock v.
Dialogue, 2 Pet. 1,
27 U. S. 15;
Johnston v.
Jones, 1 Black 209,
66 U. S.
219-220;
Zeller's Lessee v.
Eckert, 4 How. 289,
45 U. S.
297.
But as the record fails to show that any exception was taken at
the trial based upon the lack of any evidence in this particular,
we repeat, it is not properly presented to this Court for
consideration. If the defendant deemed that the court below
Page 144 U. S. 415
erroneously made no reference in its charge to the jury to the
lack of any evidence in the record respecting the existence of any
beneficiaries of the suit, it should have called that matter to the
attention of the court at that time, and insisted upon a ruling as
to that point. Failing to do that, and failing also to save any
exception on that point, it must be held to have waived any right
it may have had in that particular. The only exception taken on the
trial and embodied in the assignment of errors that can, by any
latitude of construction, be held to refer to this point is the
eighth request for instructions, which was refused, and which
refusal is made the basis of the sixth assignment of errors. That
request is as follows:
"The court is requested to instruct the jury that under the
evidence in this case the plaintiff is not entitled to recover, and
their verdict must be for defendant."
But the context and the reason given by the court for its
refusal to give the instruction clearly show that that request was
not aimed at this point, but related solely to the question of
negligence on the part of the defendant company and the alleged
contributory negligence of the party killed. That this request for
instructions meant what the court understood it to mean, and had no
reference whatever to the question of evidence respecting the
existence of the beneficiaries named in the declaration, is further
shown by the fact that the court in its general charge assumed that
such evidence had been introduced, and also by the fact that the
ninth request of the plaintiff in error for instructions to the
jury likewise proceeded on that assumption. That request is as
follows:
"The damages in cases of this kind are entirely pecuniary in
their nature, and the jury must not award damages beyond the amount
the evidence shows the children would probably have realized
from deceased had he continued to live. Nothing can be given
for injured feelings or loss of society."
Furthermore, this assignment of error is too broad and general,
under the twenty-first rule of this Court, to bring up such a
specific object as it seeks to do. This Court should not be put to
the labor and trouble of examining the whole of the evidence to see
whether there was enough for the verdict
Page 144 U. S. 416
below to have rested upon. But any objection made to the
nonexistence of evidence to support the verdict and judgment below
should, in the language of the rule, "set out separately and
particularly each error asserted and intended to be urged."
Van
Stone v. Stillwell & Bierce Manufacturing Company,
142 U. S. 128. In
our opinion, therefore, this point raised by the plaintiff in error
is without merit. As to whether, as a matter of fact, there was
evidence respecting the existence of any beneficiaries to this
action, we do not, of course, express any opinion. In the view
above taken of the matter, it is not necessary to decide that
point. The legal presumption is that there was, and we shall
proceed to consider the other assignments of error upon that
presumption.
These assignments of error, so far as we can consider them,
properly relate to but two questions: (1) whether there was
negligence on the part of the railroad company in the running of
the train at the time of the accident and (2) whether, even if the
company was negligent in this particular, the deceased was guilty
of such contributory negligence as will defeat this action.
With respect to the first question, as here presented, the court
charged the jury substantially that negligence on the part of
either the railroad company or the deceased might be defined to
be
"the failure to do what reasonable and prudent persons would
ordinarily have done under the circumstances of the situation or
doing what reasonable and prudent persons, under the existing
circumstances, would not have done;"
that the law did not require the railroad company to adopt and
have in use at public crossings the most highly developed and best
methods of saving the life of travelers on the highway, but only
such as reasonable care and prudence would dictate under the
circumstances of the particular case, and that the question of
negligence or want of ordinary care and prudence was one for the
jury to decide. In this connection, the court gave to the jury the
following instruction, which, it is claimed, was erroneous:
"You fix the standard for reasonable, prudent, and cautious men
under the circumstances of the case as you find them
Page 144 U. S. 417
according to your judgment and experience of what that class of
men do under these circumstances, and then test the conduct
involved and try it by that standard, and neither the judge who
tries the case nor any other person can supply you with the
criterion of judgment by any opinion he may have on that
subject."
But it seems to us that the instruction was correct, as an
abstract principle of law, and was also applicable to the facts
brought out at the trial of the case. There is no fixed standard in
the law by which a court is enabled to arbitrarily say in every
case what conduct shall be considered reasonable and prudent and
what shall constitute ordinary care, under any and all
circumstances. The terms "ordinary care," "reasonable prudence,"
and such like terms, as applied to the conduct and affairs of men,
have a relative significance, and cannot be arbitrarily defined.
What may be deemed ordinary care in one case may, under different
surroundings and circumstances, be gross negligence. The policy of
the law has relegated the determination of such questions to the
jury under proper instructions from the court. It is their province
to note the special circumstances and surroundings of each
particular case and then say whether the conduct of the parties in
that case was such as would be expected of reasonable, prudent men
under a similar state of affairs. When a given state of facts is
such that reasonable men may fairly differ upon the question as to
whether there was negligence or not, the determination of the
matter is for the jury. It is only where the facts are such that
all reasonable men must draw the same conclusion from them that the
question of negligence is ever considered as one of law for the
court.
Railroad Co. v.
Pollard, 22 Wall. 341;
Delaware &c.
Railroad v. Converse, 139 U. S. 469;
Thompson v. Flint &c. Railway, 57 Mich. 300;
Lake
Shore &c. Railway v. Miller, 25 Mich. 274;
Railway v.
Van Steinburg, 17 Mich. 99, 122;
Gaynor v. Old Colony
& Newport Railway, 100 Mass. 208, 212;
Marietta
&c. Railroad Co. v. Picksley, 24 Ohio St. 654;
Pennsylvania Railroad v. Ogier, 35 Penn.St. 60;
Robinson v. Cone, 22 Vt. 213;
Jamison v. San Jose
&c. Railroad, 55 Cal. 593; Redfield
Page 144 U. S. 418
on Railways (5th ed.) § 133, � 2; 16 Amer. &
Eng. Enc.Law, Tit. "Negligence," 402, and authorities cited in note
2. We do not think, therefore, that this instruction was erroneous
in any particular.
It is further urged that the court erred in giving to the jury
the following instruction:
"If you find from the evidence in this case that the railroad
train which killed Elijah Smith was moving at a rate of speed
forbidden by the city ordinances, . . . the law authorizes you to
infer negligence on the part of the railroad company as one of the
facts established by the proof."
It is said that no evidence was introduced with respect to an
ordinance of the city regulating the speed of railway trains.
Counsel, in this matter, labor under a misapprehension. The bill of
exceptions states that
"the ordinance of the City of Detroit prohibiting the running of
railroad trains within the limits of the city at a greater rate of
speed than six miles per hour"
was admitted in evidence over the defendant's objections, and as
there was a great deal of evidence introduced on behalf of the
plaintiff that the train which killed Mr. Smith was running at a
much more rapid rate than the ordinance permitted, the instruction
quoted was applicable, and, under the authorities, was as favorable
to the defendant as it had the right to demand. Indeed, it has been
held in many cases that the running of railroad trains within the
limits of a city at a rate of speed greater than is allowed by an
ordinance of such city is negligence
per se. Schlereth
v. Missouri Pac. Railway, 96 Mo. 509;
Virginia &c.
Railway v. White, 84 Va. 498. But perhaps the better and more
generally accepted rule is that such an act on the part of the
railroad company is always to be considered by the jury as at least
a circumstance from which negligence may be inferred in determining
whether the company was or was not guilty of negligence.
Union
Pac. Railway v. Rassmussen, 25 Neb. 810;
Blanchard v. Lake
Shore &c. Railway, 126 Ill. 416;
Meloy v. Chicago
&c. Railway, 77 Ia. 743;
Savannah &c. Railway v.
Flannagan, 82 Ga. 579;
Peyton v. Texas &
Page 144 U. S. 419
Pac. Railway, 41 La.Ann. 861. At any rate, the charge
of the court in this particular was not unfavorable to the
defendant under the law.
Haas v. Chicago &c. Railroad,
41 Wis. 44;
Vicksburg &c. Railroad v. McGowan, 62
Miss. 682;
Philadelphia &c. Railroad v. Stebbing, 62
Md. 504;
McGrath v. New York &c. Railroad, 63 N.Y.
522;
Houston &c. Railroad v. Terry, 42 Tex. 451;
Bowman v. Chicago &c. Railroad, 85 Mo. 533;
Crowley v. Burlington &c. Railroad, 65 Ia. 658;
Keim v. Union R. & T. Co., 90 Mo. 314;
Ellis v.
Lake Shore &c. Railroad, 138 Penn.St. 506; 4 Amer. &
Eng.Enc.Law, Tit. "Crossings," 934, and authorities cited in notes
8 and 10.
One of the chief assignments of error, and perhaps the one most
strongly relied on to obtain a reversal of the judgment below, is
that the court erred in giving the following instruction:
"So if you find that because of the special circumstances
existing in this case, such as that this was a crossing in the city
much used and necessarily frequently presenting a point of danger,
where several tracks run side by side, and there is consequent
noise and confusion and increased danger; that owing to the near
situation of houses, barns, fences, trees, bushes, or other natural
obstructions which afforded less than ordinary opportunity for
observation of an approaching train, and other like circumstances
of a special nature, it was reasonable that the railroad company
should provide special safeguards to persons using the crossing in
a prudent and cautious manner, the law authorizes you to infer
negligence on its part for any failure to adopt such safeguards as
would have given warning, although you have a statute in Michigan
which undertakes by its provisions to secure such safeguards in the
way the statute points out. The duty may exist outside the statute
to provide flagmen or gates or other adequate warnings or
appliances if the situation of the crossing reasonably requires
that -- and of this you are to judge -- and it depends upon the
general rule that the company must use its privilege of crossing
the streets on its surface grade with due and reasonable care for
the rights of other persons using the highway with proper care and
caution on their part. "
Page 144 U. S. 420
"So if you find that the train hands kept no proper lookout, and
managed the train without due caution and reasonable care, you will
be authorized to infer negligence on the part of the company as one
of the facts established in the case."
That this instruction is in harmony with the general rule of law
obtaining in most of the states and at common law we think there
can be no doubt. The general rule is well stated in
Central
Passenger Ry. Co. v. Kuhn, 86 Ky. 578, 589, as follows:
"The doctrine with reference to injuries to those crossing the
track of a railway where the right to cross exists is that the
company must use such reasonable care and precaution as ordinary
prudence would indicate. This vigilance and care must be greater at
crossings in a populous town or city than at ordinary crossings in
the country, so what is reasonable care and prudence must depend on
the facts of each case. In a crossing within a city, or where the
travel is great, reasonable care would require a flagman constantly
at the crossing, or gates or bars, so as to prevent injury; but
such care would not be required at a crossing in the country, where
but few persons passed each day. The usual signal, such as ringing
the bell and blowing the whistle, would be sufficient."
Citing Thompson on Negligence 417;
Louisville &c.
Railroad v. Goetz, 79 Ky. 442. And it was accordingly held in
that case that a railroad company which had failed to provide a
flagman or gates during the night-time, when many trains were
passing at a crossing in a thickly populated portion of the City of
Louisville, buildings being situated near the track at that point,
was guilty of "negligence of the most flagrant character."
See
also, to the same effect,
St. Louis &c. Railroad v.
Dunn, 78 Ill. 197;
Bentley v. Georgia Pac. Railway,
86 Ala. 484;
Western Atlantic Railroad v. Young, 81 Ga.
397;
Troy v. Cape Fear &c. Railroad, 99 N.C. 298;
Bolinger v. St. Paul &c. Railroad, 36 Minn. 418.
It is also held in many of the states -- in fact the rule is
well nigh if not quite universal -- that a railroad company, under
certain circumstances, will not be held free from negligence even
though it may have complied literally with the
Page 144 U. S. 421
terms of a statute prescribing certain signals to be given and
other precautions to be taken by it for the safety of the traveling
public at crossings. Thus, in
Chicago &c. Railroad v.
Perkins, 125 Ill. 127, it was held that the fact that a
statute provides certain precautions will not relieve a railway
company from adopting such other measures as public safety and
common prudence dictate. And in
Thompson v. New York &c.
Railroad, 110 N.Y. 636, it was held that the giving of signals
required by law upon a railway train approaching a street crossing
does not, under all circumstances, render the railway company free
from negligence, especially where the evidence tends to show that
the train was being run at an undue and highly dangerous rate of
speed through a city or village.
See also Louisville &c.
Railway v. Commonwealth, 13 Bush. 338;
Weber v. N.Y.
Central Railroad, 58 N.Y. 451. The reason for such rulings is
found in the principle of the common law that everyone must so
conduct himself and use his own property as that, under ordinary
circumstances, he will not injure another in any way. As a general
rule, it may be said that whether ordinary care or reasonable
prudence requires a railroad company to keep a flagman stationed at
a crossing that is especially dangerous is a question of fact for a
jury to determine under all the circumstances of the case, and that
the omission to station a flagman at a dangerous crossing may be
taken into account as evidence of negligence, although in some
cases it has been held that it is a question of law for the court.
It seems, however, that before a jury will be warranted in saying,
in the absence of any statutory direction to that effect, that a
railroad company should keep a flagman or gates at a crossing, it
must be first shown that such crossing is more than ordinarily
hazardous, as, for instance, that it is in a thickly populated
portion of a town or city or that the view of the track is
obstructed either by the company itself, or by other objects proper
in themselves, or that the crossing is a much traveled one, and the
noise of approaching trains is rendered indistinct and the ordinary
signals difficult to be heard by reason of bustle and confusion
incident to railway or other business or
Page 144 U. S. 422
by reason of some such like cause, and that a jury would not be
warranted in saying that a railroad company should maintain those
extra precautions at ordinary crossings in the country. The
following cases are illustrative of various phases of the rules we
have just stated:
Eaton v. Fitchburg Railroad, 129 Mass.
364;
Bailey v. New Haven Railroad, 107 Mass. 496;
Pennsylvania Railroad v. Matthews, 36 N.J.Law 531;
Pennsylvania Railroad v. Killips, 88 Penn.St. 405;
Kansas Pac. Railroad v. Richardson, 25 Kan. 391;
State
v. Philadelphia &c. Railroad, 47 Md. 76;
Welsch v.
Hannibal &c. Railroad, 72 Mo. 451;
Frick v. St. Louis
&c. Railroad, 75 Mo. 595;
Pittsburgh &c. Railway
v. Yundt, 78 Ind. 373;
Hart v. Chicago &c.
Railway, 56 Ia. 166;
Kinney v. Crocker, 18 Wis.
74.
But it is insisted that these rules are none of them applicable
to this case, because the whole subject of signals and flagmen,
gates, etc. at crossings in Michigan is regulated by statute. The
claim is put forth that under the statute of Michigan (3 How.Stat.
§ 3301) an officer of the state known as the "railroad
commissioner" is charged with the duty of determining the necessity
of a flagman at any and all crossings in the state, and that unless
an order had been made by him requiring a railroad company to
station a flagman at any particular crossing, the failure on the
part of the company to provide such flagman could not even be
considered as evidence of negligence, and that in this case no such
order by the commissioner is shown to have been made.
Battishill v. Humphreys, 64 Mich. 494;
Guggenheim v.
Lake Shore &c. Railway, 66 Mich. 150, and Freeman v.
Railway Company, 74 Mich. 86, are relied on as sustaining
this contention.
If the construction of this statute by the Michigan courts be as
claimed by the defendant, of course, this Court would feel
constrained to adopt the same construction even if we thought it in
conflict with fundamental principles of the law of negligence to
which we have referred in a preceding part of this opinion
obtaining in other states.
Meister v. Moore, 96 U. S.
76;
Bowditch v. Boston, 101 U. S.
16;
Flash v.
Page 144 U. S. 423
Conn, 109 U. S. 371,
109 U. S. 3 Sup.Ct.
Rep. 263; Bucher v. Railroad Co.,
125 U. S. 555;
Detroit v. Osborne, 135 U. S. 492.
But do the Michigan cases cited sustain the defendant's
contention? We think not, but rather that they support the rule
laid down by the court below in the charge excepted to. In
Battishill v. Humphreys, the court below had refused to
instruct the jury, upon a request by the plaintiff in error,
that
"the railroad law of this state (art. 4, § 3) lays upon the
railroad commissioner of the state the duty of determining the
necessity of establishing a flagman upon any particular street
crossing of a railway, and, upon the testimony and under the
pleadings in this case, the absence of a flagman at Summit Avenue
is no evidence of any negligence upon the part of the
receivers."
Such refusal having been assigned as error, the supreme court of
the state held that the instruction should have been given, and
accordingly reversed the judgment below. In the opinion, the court
said:
"I think the second request of the defendants should have been
given. No reference was made to this matter in the charge of the
court, and it may well be considered, when a request is
specifically made and it is refused, that the jury will take such
refusal as a liberty to infer that the request is wrong in law,
unless some explanation is made by the court of the reasons for
such refusal to rebut such natural inference. . . . Evidence of
this nature was introduced, and the request which ought to have
been given denied, and we cannot say it did not have some influence
upon the jury in determining the question of the negligence of the
company."
If this decision stood alone, there would be much force in the
contention of the defendant in this case; but the other decisions
referred to have explained it, and apparently qualified the broad
doctrine laid down in it, bringing the rule in Michigan in harmony
with the generally accepted rule obtaining elsewhere.
Thus, in
Guggenheim v. Lake Shore Railway, although it
was stated in the opinion that
"the railroad company is not compelled to keep a watchman or
flagman at every street or
Page 144 U. S. 424
road crossing when a jury, upon a trial like this, might think
it necessary to have one stationed,"
and that "this matter is regulated under the statutes of our
state by the railroad commissioner," yet it was held that when the
company itself so obstructs its track that its trains cannot be
seen by travelers approaching a crossing, or so that the ordinary
signals required by statute will not be sufficient to warn
travelers of the approach of trains, "some additional warning must
be given, and there are cases where a flagman would be necessary to
acquit the company of negligence." And it was further held that the
trial court was right in instructing the jury that it was the duty
of the company to give to the traveler on the highway due and
timely warning of the coming of its trains and the approaching
danger
"either by bell or whistle, or both, or by some other means, and
in such a way as to give him an opportunity, by the exercise of due
diligence and care, to meet and guard himself from danger,"
thus showing that a duty on the part of the railway company to
provide against accidents at crossings may and does exist outside
of the statute.
But the case of
Freeman v. Railway Company,
[crs1]which, so far as we have examined, is the latest adjudication
of the Supreme Court of Michigan on the subject, contains the most
thorough discussion of the general question of any of those
referred to by the defendant, and, so far from sustaining its
contention, is directly opposed to it, and in line with the
instruction given by the court below in this case. In that case,
one of the questions considered by the court was whether it was
negligence on the part of the railway in not providing a flagman at
the crossing of Genesee Street, in the City of Marquette, the
railroad commissioner not having required it to station one there.
The facts in relation to the hazardous nature of the crossing are
referred to particularly in the opinion of the court from which we
quote. In considering the question, the court went very fully into
the merits of it, in all its bearings, and said:
"The contention of the defendant is that it was not negligence.
It is claimed that under the statutes of this state, the duty of
determining where flagmen shall be stationed devolves upon the
railroad commissioner, and that, in
Page 144 U. S. 425
order to hold defendant liable for such negligence in this case,
it should have appeared in proof that the railroad commissioner had
ordered a flagman to be stationed at this crossing, and that his
orders were not obeyed, or that the crossing was such an
exceptionally dangerous one that a common law duty was imposed on
the defendant to keep a flagman at that point, and that no showing
of this kind was made"
Replying to this contention, the court said:
"We think the judge below ruled correctly on this point, and in
accordance with our previous decisions. The jury were instructed
substantially that it is not the law of this state that at every
road or street crossing in a village or city a railroad company is
bound to place a flagman. The law puts upon the railroad
commissioner the duty of determining the necessity of establishing
a flagman upon any particular street crossing of a railroad, and
the absence of a flagman at Genesee Street crossing, where the
accident occurred, is of itself no evidence of negligence upon the
part of the defendant. And the plaintiff must show that the
circumstances of the crossing are such that common prudence would
dictate that the railroad company should place a flagman there or
his equivalent. That before the jury could find this, it must be
made to appear to them that the danger at the crossing was
altogether exceptional, that there was something about the case
rendering ordinary care on the part of the witness Grant (the
driver of the carriage which was run over and broken up at the
crossing) an insufficient protection against injury, and therefore
made the assumption of the burden of a flagman on the part of the
railroad company a matter of common duty for the safety of people
crossing."
"You have, as I said before, been at this crossing; you have
seen the situation; you have seen its relation to travel and to the
city, and it is for you to determine, if you reach that point,
under all the circumstances of the case, whether or not it was
negligence, under the instructions I have given you and the
evidence, not to have a flagman there."
The supreme court then went on to say:
"If any fault can be found with this charge, it was too
favorable to the defendant in that it connected the necessity of
keeping a flagman
Page 144 U. S. 426
at the crossing with the use of ordinary care on the part of
Grant. The duty of retaining a flagman at this point did not depend
on the question whether Grant, in this particular instance, could
by common prudence have avoided this collision or not. It depended
rather upon the situation of the crossing, its relation to the
travel upon the street generally, and the facilities afforded not
only the travelers on the street, but the trainmen on the cars, to
avoid collisions and accidents of this kind, without a flagman to
give warning of approaching trains."
"I think the jury were warranted in finding it to be negligence
in the defendant in not providing a watchman at this point. It
seems that to the south from Genesee Street there was a steep
upgrade, so that a train of loaded cars must, in order to ascend
the same, cross the street at a higher rate of speed than would,
considering the situation of the crossing, be prudent to the safety
of passers on the street, without warning of the train's approach.
A train coming from the north could not be seen at all by those
traveling on the street in the direction Grant was driving, until
the traveler was within 40 feet of the track, and the train within
from 150 to 175 feet of the center of the street, and the engineer
on the train, being lower down in his cab than a man in a buggy,
could not get his eye into Genesee Street west of the track, as was
the fact in this case, until the locomotive was within 60 or 75
feet from the crossing, and then his vision would only extend 40 or
50 feet west of the track on the street. Under such circumstances,
a train ought to run over this crossing so that it could be stopped
at once, or a flagman ought to be stationed where he could give
warning of its approach. When an engineer at a distance beyond 75
feet from the crossing of a street in a city like Marquette, cannot
see into the street except the straight line thereof where the
track crosses, and the traveler cannot see even the top of the
locomotive until he gets within 40 feet of the track, something
more than ordinary pains to prevent accidents is incumbent both on
the railroad company and also on the traveler, if such traveler is
acquainted with the situation. "
Page 144 U. S. 427
"In
Battishill v. Humphreys, we held, under the
pleadings and testimony in the case, that the absence of a flagman
at Summit Avenue crossing in Detroit could not be considered
negligence in the railroad company, as the railroad commissioner
had not determined that it was necessary to maintain the there.
But nothing was said or intended to be said in that opinion
that there could be no negligence, in any case, in not maintaining
a flagman at a street crossing unless such commissioner had ordered
one to be stationed there. In
Guggenheim v. L.S. &
M.S. Ry. Co., the law in this respect is laid down
substantially as the circuit judge in this case instructed the
jury."
We have quoted extensively from the opinion in the case last
referred to because it seems to us a complete refutation of the
contention of the defendant herein, and states the law on this
point substantially as the court below did in its charge to the
jury in this case, and because also the facts and circumstances
relative to the railroad crossing there were so very similar to
those in this case that it makes it a very strong authority in
support of the judgment below. The underlying principle in all
cases of this kind which requires a railroad company not only to
comply with all statutory requirements in the matter of signals,
flagmen, and other warnings of danger at public crossings, but many
times to do much more than is required by positive enactment, is
that neither the legislature nor railroad commissioners can
arbitrarily determine in advance what shall constitute ordinary
care or reasonable prudence in a railroad company at a crossing in
every particular case which may afterwards arise, for as already
stated, each case must stand upon its own merits, and be decided
upon its own facts and circumstances, and these are the features
which make the question of negligence primarily one for the jury to
determine under proper instructions from the court. We think
therefore that, in that portion of the charge which we have been
discussing, the court below committed no error to the prejudice of
the defendant.
But it is claimed that the last paragraph of that portion of the
charge last above quoted, referring to the question whether
Page 144 U. S. 428
or not the trainmen kept a proper lookout and managed the train
in a prudent and cautious manner, was erroneous, because, so it is
claimed, "there was no evidence that the train hands kept no proper
lookout," etc. This contention is also without merit. There was
evidence that the ordinary signals of blowing the whistle and
ringing the bell at the crossing were not given, and that the train
was running at a more rapid rate than was permitted by the city
ordinance. If the jury believed that evidence, they must
necessarily have found that the trainmen did not keep a proper
lookout and did not manage the train in a prudent and careful
manner. The instruction complained of was certainly not prejudicial
to the defendant in this particular, since it referred to matters
concerning which evidence had been admitted, and was correct on
principle. The most that can be said against it is that the
substance of it had perhaps been given in another portion of the
charge, and the court below need not have given it; but the giving
it in different language, while not necessary and while also
correct practice might require that it be not given, was not
reversible error. So far, then, as the instructions of the court
below upon the first question as above arranged are concerned, we
conclude there was no error prejudicial to the defendant. And this
leads to a consideration of the question of the alleged
contributory negligence on the part of the deceased.
It is earnestly insisted that although the defendant may have
been guilty of negligence in the management of its train which
caused the accident, yet the evidence in the case given by the
plaintiff's own witnesses shows that the deceased himself was so
negligent in the premises that, but for such contributory
negligence on his part, the accident would not have happened, and
it is therefore contended that the court below should as matter of
law have so determined, and, it not having done so, this Court
should so declare, and reverse its judgment. To this argument
several answers might be given, but the main reason why it is
unsound is this: as the question of negligence on the part of the
defendant was one of fact for the jury to determine under all the
circumstances of the case, and under proper instructions from the
court, so
Page 144 U. S. 429
also the question of whether there was negligence in the
deceased which was the proximate cause of the injury was likewise a
question of fact for the jury to determine under like rules. The
determination of what was such contributory negligence on the part
of the deceased as would defeat this action, or perhaps, more
accurately speaking, the question of whether the deceased at the
time of the fatal accident was, under all the circumstances of the
case, in the exercise of such due care and diligence as would be
expected of a reasonably prudent and careful person under similar
circumstances, was no more a question of law for the court than was
the question of negligence on the part of the defendant. There is
no more of an absolute standard of ordinary care and diligence in
the one instance than in the other. This rule is sustained by the
Michigan authorities,
Mynning v. Detroit &c. Railroad,
64 Mich. 93;
Underhill v. Chicago &c. Railway, 81
Mich. 43;
Baker v. Railroad Co., 68 Mich. 90;
Engel v.
Smith, 82 Mich. 1, and its correctness is apparent from an
examination and analysis of the generally accepted definitions of
contributory negligence as laid down by the courts and by text
writers. Without going into a discussion of these definitions or
even attempting to collate them, it will be sufficient for present
purposes to say that the generally accepted and most reasonable
rule of law applicable to actions in which the defense is
contributory negligence may be thus stated: although the
defendant's negligence may have been the primary cause of the
injury complained of, yet an action for such injury cannot be
maintained if the proximate and immediate cause of the injury can
be traced to the want of ordinary care and caution in the person
injured, subject to this qualification, which has grown up in
recent years (having been first enunciated in
Davies v.
Mann, 10 M. & W. 546), that the contributory negligence of
the party injured will not defeat the action if it be shown that
the defendant might, by the exercise or reasonable care and
prudence, have avoided the consequences of the injured party's
negligence.
Inland & Seaboard Coasting Co. v. Tolson,
139 U. S. 551,
139 U. S. 558,
and cases cited;
Donohue v. St. Louis &c. Railroad, 91
Mo 357;
Page 144 U. S. 430
Vicksburg &c. Railroad v. Patton, 31 Miss. 156;
Deans v. Wilmington &c. Railroad, 107 N.C. 686; 2
Thompson on Negligence 1157; Cooley on Torts (1st ed.) 675; 4 Am.
& Eng.Enc.Law, Tit. "Contributory Negligence" 30, and
authorities cited in note 1.
With respect to the question of the alleged contributory
negligence of the deceased, the court charged the jury as
follows:
"Turning now to the conduct of Smith and subjecting that to the
same test of reasonable prudence and cautious conduct of a person
in his situation, you will understand that no matter how
negligently the company ran this train or how unreasonably they
neglected to provide sufficient safeguards at the crossing, if he
brought his death upon himself by his own negligence, his
administrator is not entitled to a verdict in this suit."
"So if you find that he was familiar with this crossing and its
dangers, one and all of them, that he frequently used it, and knew
how to act in using it to protect himself, and that under the
special circumstances which you find he failed to act as a prudent
and cautious man should have acted from beginning to end, or that
he omitted some precaution that a prudent man ought to have taken,
whereby he lost his life, the plaintiff cannot recover. He should
use all his faculties of seeing and hearing; he should approach
cautiously and carefully; should look and listen, and do everything
that a reasonably prudent man would do before he attempted to make
the crossing. Scrutinize his actings and doings under the light of
the then situation; the nature and character of the crossing; the
fact of the difficulty of observation; the time of day and the
probability of danger from passing trains; the fact that there were
other railroads side by side; that another train on one of these
was actually approaching and passing the noise and confusion;
possibly the noise and confusion of signals, and every fact and
circumstance bearing on the case to influence his conduct then and
there, under those circumstances and not any other circumstances,
and say upon your fail and impartial judgment whether he acted
as
Page 144 U. S. 431
a reasonable and prudent man should have acted, and with the due
care and caution demanded by the exigencies of the occasion."
"If he did so act, and the railroad company was negligent, his
administrator is entitled to your verdict. If he did not so act,
the railroad company is entitled to your verdict, whether it was
negligent or not. If it was not negligent, it is entitled to your
verdict no matter how Smith acted."
These instructions are so full and complete and are in such
entire accord with the rules of law applicable to cases of this
character that no fault whatever can be found with them. They
embody substantially the entire law of the case on the questions
under consideration, and were applicable to every feature of it.
Indeed, if they are open to any criticism at all, it is that they
were more favorable to the defendant than it had the right to
demand under the rules above stated, since they enabled the
defendant to be relieved from any liability in the case if the
deceased had been guilty of contributory negligence even though it
might, by the exercise of ordinary care and prudence, have averred
the results of such negligence. Mr. Pierce, in his work on
Railroads, p. 343, after a review of the authorities on the
subject, lays down substantially the same general rule as to the
case required of travelers at railway crossings in the following
terms:
"A traveler upon a highway, when approaching a railroad
crossing, ought to make a vigilant use of his senses of sight and
hearing in order to avoid a collision. This precaution is dictated
by common prudence. He should listen for signals and look in the
different directions from which a train may come. If by neglect of
this duty he suffers injury from a passing train, he cannot recover
of the company although it may itself be chargeable with negligence
or have failed to give the signals required by statute, or be
running at the time at a speed exceeding the legal rate."
See also generally upon this question 4 Amer. &
Eng.Enc.Law, 68-78, and authorities cited in the notes.
The recent case of
Sullivan v. New York &c.
Railroad from Massachusetts, which, in advance of the
official
Page 144 U. S. 432
reports, is published in 28 N.E. 911, is so similar to the one
at bar on this question that it deserves more than a passing
notice. The substance of the case is stated in the syllabus by the
reporter as follows:
"Plaintiff, a woman about 65 years of age, of ordinary
intelligence, and possessed of good sight and hearing, was injured
at a railroad crossing. The railroad had been raised several feet
higher than the sidewalk, and the work of grading was still
unfinished, and the crossing in a broken condition. There were
three tracks, and a train was approaching on the middle one. The
view was obstructed somewhat with buildings, but after reaching the
first track, it was clear. The evidence showed that the plaintiff
was familiar with the passing of trains, that she did not look
before going upon the track, and that if she had looked, she could
have seen the train a quarter of a mile. When the whistle sounded,
she looked directly at the train and hurried to get across.
Plaintiff testified that she looked before going upon the track,
but did not see the train or hear the whistle; that the only
warning she had was the noise of its approach after she was on the
first track, and that she did not then look to see where it was or
on which track it was coming, but started to cross as fast as
possible, and in so doing stumbled and fell between the rails. The
signals required by the statutes were not given.
Held that
it did not appear as matter of law that plaintiff was guilty of
gross or willful negligence, and that it was proper to submit the
question to the jury."
See also Evans v. Lake Shore & Mich. South.
Railway, 50 N.W. 386;
Ellis v. Lake Shore & Mich.
South. Railway, 138 Penn.St. 506;
Brown v. Tex. & Pac.
Ry., 42 La.Ann. 350;
Heddles v. Chicago &c.
Railway, 77 Wis. 228;
Parsons v. New York &c.
Railroad, 113 N.Y. 355;
Cooper v. Lake Shore & Mich.
South. Railway, 66 Mich. 261.
Nothing was said by this Court in
Railroad Company v.
Houston, 95 U. S. 697, or in
Schofield v. Chicago & St. Paul Railway, 114 U.
S. 615, which are relied upon by the defendant, that in
any wise conflicts with the instructions of the court
Page 144 U. S. 433
below in this case or lays down any different doctrine with
respect to contributory negligence.
Delaware Railroad v.
Converse, 139 U. S. 469. Nor
do the Michigan authorities which are relied upon, when read in the
light of the particular facts and circumstances of each separate
case, enunciate a different doctrine, but, so far as applicable,
they tend to sustain the instructions objected to.
It is also insisted that the court erred in refusing the
following request of the defendant for instructions:
"If you find that the deceased might have stopped at a point
fifteen or eighteen feet from the railroad crossing, and there had
an unobstructed view of defendant's track either way; that he
failed so to stop; that instead, the deceased drove upon the
defendant's track, watching the Bay City train that had already
passed, and with his back turned in the direction of the
approaching train, the deceased was guilty of contributing to the
injury, and your verdict must be for the defendant although you are
also satisfied that the defendant was guilty of negligence in the
running of the train in the particulars mentioned in the
declaration."
The reason given by the court for refusing this request was
that
"it is too much upon the weight of the evidence, and confines
the jury to the particular circumstance narrated, without notice of
others that they may think important."
This reason is a sound one. In determining whether the deceased
was guilty of contributory negligence, the jury were bound to
consider all the facts and circumstances bearing upon that
question, and not select one particular prominent fact or
circumstance as controlling the case to the exclusion of all the
others.
Cooper v. Lake Shore & Mich. South. Railway Co.,
supra; Baltimore &c. Railroad Co. v. Kane, 69 Md. 11.
Moreover, the substance of the request, so far as it was correct,
had already been given, in general terms, by the court in that part
of the charge referring to the degree of care and caution required
of the deceased in approaching the railroad crossing in order to
free him from the charge of contributory negligence, and the
refusal of the court to give it again in different language was not
error.
Erie Railroad Co. v. Winter, 143 U. S.
60,
143 U. S.
75.
Page 144 U. S. 434
There are no other questions in the case that call for special
consideration. We have endeavored to consider and pass upon all of
the material ones that have been discussed by counsel both in their
brief and in oral argument at the bar. We do not think that it has
been shown that any error was committed in the trial below which
was prejudicial to the rights of the defendant.
Judgment affirmed.