Opinion of the Court. 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 Kansas; 391; State v. Philadelphia &c. Railroad, 47 Maryland, 76; Welsch v. Hannibal &c. Railroad, 72 Missouri, 451; Frick v. St. Louis &c. Railroad, 75 Missouri, 595; Pittsburgh &c. Railway v. Yundt, 78 Indiana, 373; Hart v. Chicago &c. Railway, 56 Iowa, 166; Kinney v. Crocker, 18 Wisconsin, 74. But it is insisted that these rules are none of them applicable to this case, because the whole subject of signals and flaginen, 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 flagmen 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 Michigan, 494; Guggenheim v. Lake Shore &c. Railway, 66 Michigan, 150; and Freeman v. Railway Company, 74 Michigan, 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. Opinion of the Court. Conn, 109 U. S. 371; Bucher v. Cheshire 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 it did not have some influence upon the jury in determining the question of the negligence of the company." say 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 Opinion of the Court. road-crossing where 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 travellers approaching a crossing, or so that the ordinary signals required by statute will not be sufficient to warn travellers 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 traveller 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, 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 Opinion of the Court. 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 the i the danger at the crossing was altogether exceptional — tnar there was something about the case rendering ordinary carr 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 Opinion of the Court. 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 travellers 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. And the engineer on the "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 up-grade, 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 travelling on the street in the direction Grant was driving, until the traveller was within 40 feet of the track, and the train within from 150 to 175 feet of the centre of the street. 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 traveller 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 traveller, if such traveller is acquainted with the situation. |