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Vol. II.)

PENNSYLVANIA RAILROAD Co. v. WEBER.

(No. 8.

before dried evidences predicated.n, depends have

evidence on the subject, the presumption is that the decedent observed the precautions which the law prescribes, before he attempted to cross the defendant's road. It is true that, when the plaintiff's own evidence discloses contributory negligence, there can be no recovery ; but if it does not, the burden is on the defendant to disprove cate ; and, in such case, the question of negligence is for the jury. Does, then, the plaintiff's evidence show that the decedent was guilty of contributory negligence in not stopping to look and listen for the train by which he was killed ? If so, the court should have given a binding direction to the jury to find for the defendant. But, in the absence of such evidence, it would have been error for the court to withdraw the case from the jury, and determine, as matter of law, that he was guilty of negligence, which contributed to his death. Whether, then, the court should have affirmed the defendant's second point without qualification, depends upon the character of the evidence of which it was predicated. If, as suggested in the point, the uncontradicted evidence in the case shows that the decedent did not stop before driving on the track, then he omitted a plain and positive duty; and the court should have declared its omission negligence, as a matter of law. But, if there was no direct and positive evidence showing that he did not stop before driving on the track, then the learned judge was clearly right in refusing to withdraw the case from the jury, and in saying, as he did, “ We cannot affirm this point, but say again, that the first presumption of law is that he did stop, look, and listen. But this presumption will give way to the actual truth, that he did not do so. And we say again, that, if the evidence satisfies you that had Weber stopped, looked, and listened, he would not have been injured, then he was guilty of negligence, and you should find for the defendant, even should you find that the engineer gave no warning of the approach of the train.” It is apparent, from the answer and from the whole tenor of the charge, that, if the court erred in not giving the instruction prayed for, the error arose from a mistaken view of the evidence, and not from misapprehension of the law. Does the uncontradicted evidence in the case show that the decedent did not stop before driving on the track? We have looked through the record, and have not been able to discover any direct and positive evidence that such was the fact. The decedent was returning in a baker's wagon from Marysville, where he had been to supply his customers with bread, and was seen by the plaintiff's witnesses, who were at work on the railroad, about twelve hundred feet east of the crossing where he was killed. He stopped and sold them some cakes, and then drove on. One of the witnesses, Alfred Ensminger, in answer to the question, “ What was the next thing that attracted your attention, after the baker started on his way westward ? " said, “ Well, after a young man had bought the cakes from him, Alfred Priesler, we started right away to work again : I was working with my face eastward, stooping down tamping a tie, and I heard a sharp whistle; I turned around and looked up the road, and I saw the engine strike the wagon and horse.” The other witness, P. Deitz, said, “I bought some cakes from him, me and Priesler. After the purchase of the cakes, we went back to work again, and he started on." In reply to the question, “ Where did you next see him ?” he said : “Well, I heard a whistle; I looked up; says I, there goes the baker,' we just call

I was from him, Alfred said, “Well, aratte

wagon anin, me and Pand he started :: Well,

[No. 8.

Vol. II.]

PENNSYLVANIA RAILROAD Co. v. WEBER.

him the baker. This whistle was just as the baker was driving on, as near as I can tell. The train and the baker were approaching each other at that time; I did not know that the train was coming until I looked up; I did not hear any but the one whistle.” In answer to the question put to him on cross-examination, “ Was the horse close to the rail when you saw him ?” he said, “I could not say that positively, because I was scared ; I could not say how close he was ; I could see the horse, though.” On behalf of the defendant, Samuel H. Free, the engineer of the train, testified as follows: “ When we got to the end of the stone wall, or near about there, I believe the whistling post stands near the end, I blew the whistle four blasts, for the next crossing below. About half way from that (the whistling-post) to the crossing below, I saw the horse coming out on the road towards the track; I blew the whistle again, some four or five blasts, sharp and quick; and, a very short time after that, the horse and wagon stopped on the track; as soon as they stopped, I pulled the patent brake and reversed the engine; the engine was in that position until it struck the wagon; I suppose the horse's head was within a few feet of the track when I first saw it; when I first saw the horse I was about half way from the whistling-post to the crossing, as near as I can tell ; when I struck Weber, the horse stood with his hind feet just across the north rail of the south track, as near as I can tell ; Weber was sitting in the wagon, - not quite in the middle of the wagon, — a little nearer to the front than the middle ; when I got close enough to him, I saw he had hold of the lines, pulling back, as though he was trying to back the horse ; I think the two front wheels stood near about the north rail of the south track; the shafts stood the same as a horse backing or trying to back, standing up alongside of his neck.” Henry Robinson, the fireman, testified : “ My attention was called first as I was sweeping off the foot-board, by an alarm-whistle ; I looked on my side and saw the horse ; I saw a man seated in the wagon near the middle, as near as I could tell by the appearance; the horse was stopped ; it appeared to me that he was trying to back the horse off the road, as the shafts were up alongside of the horse's neck, and the wagon had run on him; he remained in that position until we struck him.” . This is the substance of the testimony on the subject; and, so far from showing that the decedent did not stop to look and listen before driving on the track, it shows conclusively that there was no direct and positive evidence on the subject, one way or the other. No human eye saw him from the time he sold the cakes to Deitz and Priesler until the alarm-whistle sounded, when he was seen driving upon the track, his horse's head within a few feet of it, and the engine not more than six hundred and twenty feet from the crossing where the collision took place.

Whether he stopped, or not, before driving on the track, is matter of mere inference or conjecture, and cannot with certainty be known. On the one hand is the presumption that he stopped to look and listen. He was well acquainted with the crossing, having been accustomed to drive over it every day, and must have known the time at which the regular trains passed. He had the highest motive to take the necessary precaution to insure his safety, and the presumption is that he did. On the other hand, it may be inferred from the circumstances, that if he had

Vol. II.)

PENNSYLVANIA RAILROAD Co. v. WEBER.

(No. 8.

d Co. v. Coyle, 12 Ib. 329, in bodicts, that the questien

stopped to look and listen he would have seen or heard the approaching train. But whether he stopped or not, it was the province of the jury to determine as a question of fact, and not a matter of law, for the decision of the court. The evidence from which the decedent's negligence may be inferred is not so clear and convincing in this case as in The Hanover Railroad Co. v. Coyle, 5 P. F. Smith, 396, and The Pennsylvania Railroad Co. v. Goodman, 12 Ib. 329, in both of which it was held, notwithstanding our dissatisfaction with the verdicts, that the question was rightly left to the jury. Manifestly the court could not have given the instruction prayed for without invading the province of the jury, and running counter to the whole current of our decisions in cases of negligence. If, then, there was no error in refusing to affirm the defendant's second point, did the court err in saying to the jury, in answer to it, that if the evidence satisfies you that had Weber stopped, looked, and listened, he would not have been injured, then he was guilty of negligence, and you should find for the defendant ? Whether he stopped or not was, in the absence of any direct and positive evidence on the subject, a matter of inference from all the circumstances of the case, and what was the reasonable and proper inference was for the determination of the jury. What possible harm then could the instruction complained of do the defendant ? On the contrary, what stronger argument could have been made to the jury to show that he did not stop, for if they believed that he would not have been killed if he had stopped to look and listen, then the natural and pregnant inference would be that he did not stop; and if so, he was guilty of contributory negligence, and the plaintiffs were not entitled to recover. Nor was there error in charging that if the evidence shows negligence on the part of Weber in approaching and crossing the traek of defendant's road, and no negligence on the part of the company, then the blame and fault would be Weber's own, and the law will not permit the plaintiff to recover.

This instruction was clearly right, and it could not, as contended, have misled the jury by leading them to believe that they could not find a verdict for the defendant unless they found that the company was not guilty of negligence, although they should find that Weber was, for in the very next breath the court told the jury that if the evidence shows that both Weber and the company were guilty of negligence or carelessness in crossing the track, so that both parties were to blame for the accident, the plaintiff cannot recover.

The very able and earnest argument of the counsel for the plaintiff in error has failed to convince us that the evidence in this case shows such contributory negligence on the part of the decedent as made it the duty of the court to declare it such as matter of law, or that there was any error in the instructions given to the jury. On the contrary, we are satisfied, upon a review of the whole record, that the case was well tried by the learned judge, and that his charge contains a clear and correct statement of the law arising upon the evidence. If the jury erred in their finding, it was from no failure on his part to draw their attention to the true attitude of the case under the evidence, and to that view of it which tended to show contributory negligence on the part of the decedent.

The court could not have gone further without trenching on the prov

the very neregligence, dant unles

Vol. II.)

CITY OF Pontiac v. CARTER.

(No. 8.

ince of the jury, whose duty it was to determine, under all the circumstances of the case, whether or not he was guilty of contributory negligence.

Judgment affirmed.

SUPREME COURT OF MICHIGAN.

[JUNE, 1875.]

MUNICIPAL CORPORATION. — DAMAGES FOR CHANGING GRADE OF

STREET.

CITY OF PONTIAC v. CARTER.

Damages will not be given for the injury to adjacent property caused by changing the

grade of a street when the change is lawfully made by the proper authority.

thquals suffer an iduals must enton v. Crowther:. 355, hold the Fick. 418

COOLEY, J., delivered the opinion of the court.

The weight of authority against this action is overwhelming. In the leading case of The Plate Glass Company v. Meredith, 4 T. R. 794, which, like the one before us, was an action to recover damages suffered from raising the grade of a public way, Lord Kenyon states, very concisely, some of the reasons which preclude a private remedy in such a case. “If this action could be maintained, every turnpike act, paving act, and navigation act would give rise to an infinity of actions. If the legislature think it necessary, as they do in many cases, they enable the commissioners to award satisfaction to the individuals who happen to suffer. But, if there be no such power, the parties are without remedy, provided the commissioners do not exceed their jurisdiction. .... Some individuals suffer an inconvenience under all these acts of parliament; but the interests of individuals must give way to the accommodation of the public.” P. 496. The cases of Bolton v. Crowther, 2 B. & C. 703, and The King v. The Commissioners of Sewers, 8 B. & C. 355, hold the same doctrine. In the leading American case of Callendar v. Marsh, 1 Pick. 418, 450, Parker, Ch. J., sets forth more fully the right of the public. “ The streets on which the plaintiff's house stands had become public property by the act of laying them out conformably to law; and the value of the land taken must have been either paid for or given to the public at the time, or the street could not have been legally established. Being legally established, although the right or title in the soil remained in him from whom the use was taken, yet the public acquired the right not only to pass over the surface in the state it was in when first made a street, but the right also to repair and amend the street; and, for this purpose, to dig down and remove the soil sufficiently to make the passage safe and convenient. Those who purchase house-lots bordering on streets are supposed to calculate the chance of such elevations and reductions as the increase in population of the city may require, in order to make the passage to and from the several parts of it safe and convenient; and, as their purchase is always voluntary, they may indemnify themselves in the

dig might also surface then, yet the title in only establish the

Vol. II.)

CiTY OF PONTIAC v. CARTER.

(No. 8.

price of the lot which they buy, or take the chance of future improvements as they shall see fit. The standing laws of the land, giving to surveyors the power to make these improvements, every one who purchases a lot upon the summit or on the decline of a hill is presumed to foresee the changes which public necessity or convenience require, and avoid or provide against loss.” And again : “Highways .... when rightfully laid out, are to be considered as purchased by the public of him who owned the soil ; and, by the purchase, the right is acquired of doing everything with the soil over which the passage goes, which may render it safe and convenient; and he who sells may claim damages, not only on account of the value of the land taken, but for the diminution of the value of the adjoining lots, calculating upon the future probable reduction or elevation of the street or road ; and all this is a proper subject for the inquiry of those who are authorized to lay out, or of a jury, if the parties should demand one. And he who purchases lots so situated, for the purpose of building upon them, is bound to consider the contingencies which may belong to them.” The following cases either refer to Callendar v. Marsh as authority, and follow it, or recognize and approve the principles on which it rests : Radcliff's Executor V. Brooklyn, 4 Comst. 195; Matter of Fifth St. 17 Wend. 667; Graves v. Otis, 2 Hill, 466 ; Wilson v. Mayor, 1 Denio, 595; Benedict v. Goit, 3 Barb. 459; Ely v. Rochester, 26 Barb. 133 ; Kavanaugh v. Brooklyn, 38 Barb. 232; Green v. Reading, 9 Watts, 382; Henry v. Bridge Company, 8 W. & S. 85; O'Connor v. Pittsburg, 6 Harris, 189; In Ridge st. 29 Penn. St. 391; Bender v. Nashua, 17 N. H. 477 ; Sprague v. Worcester, 13 Gray, 193; Clark v. Wilmington, 5 Harring. 243 ; Humes v. Knoxville, 1 Humph. 403; Cotes v. Davenport, 9 Iowa, 227; Cole v. Muscatine, 14 Ib. 296; Russell v. Burlington, 30 Ib. 262; Burlington v. Gilbert, 31 Iowa, 356; Roberts v. Chicago, 26 Ill. 249; Nevins v. Peoria, 41 Ib. 502 (where, as in some other cases, the right of a city to improve the streets, as the authorities shall determine is best for the public interests, is declared to rest on the same ground as the right of a private person to deal with his own possessions); Snyder v. Rockfort, 6 Ind. 237; Macy v. Indianapolis, 17 "Ib. 267; La Fayette v. Bush, 19 Ib. 326; St. Louis v. Gurno, 12 Mo. 414; Hoffman v. St. Louis, 15 Ib. 651; White v. Yazoo, 27 Miss. 357; Commissioners v. Withers, 29 Ib. 21; Hovey v. Mayo, 43 Me. 322; Rounds v. Mumford, 2 R. I. 154; Keasy v. Louisville, 4 Dana, 154; Alexander v. Milwaukee, 16 Wis. 247; Reynolds v. Shreveport, 13 La. An. 426; Bennett v. New Orleans, 14 Ib. 120; Dorman v. Jacksonville, 13 Fla. 538; 8. C. 7 Am. Rep. 233; Simmons v. Camden, 26 Ark. 276 ; S. C. 7 Am. Rep. 820; Goszler v. Georgetown, 6 Wheat. 593; Smith v. Washington, 20 How. 135. In the case last cited, the action was based upon an alleged " unlawful and wrongful” alteration of a street to the injury of the plaintiff ; but Grier, J., in delivering the opinion of the court, says of the corporate authorities, that, “ having performed this trust confided to them by law according to the best of their ability, judgment, and discretion, without exceeding the jurisdiction and authority vested in them as agents of the public, and on land dedicated to public use for the purposes of a highway, they have not acted • unlawfully or wrongfully,' as charged in the declaration. They have not trespassed on the plaintiff's property, nor erected

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