Grand Trunk Ry. Co. v. Ives
144 U.S. 408 (1892)

Annotate this Case

U.S. Supreme Court

Grand Trunk Ry. Co. v. Ives, 144 U.S. 408 (1892)

Grand Trunk Railway Company v. Ives

No. 134

Argued January 4-5, 1892

Decided April 4, 1892

144 U.S. 408

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF MICHIGAN

Syllabus

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,

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