Lucius Quintus Cincinnatus Lamar

“ 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. ”

“ 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 prejudical to the defendant in this particular, since it referred to matters concerning which evidence had been admitted, and was correct on principle. ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ The duty may exist outside the statute to provide fiagmen 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. ”

“ If the defendant deemed that the court below 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. ”

“ Pierce, in his work on Railroads, (page 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. ”

“ 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 ”

“ 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. ”

“ 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 any one dependent upon him for support, and that, therefore, no right of action could be in the plaintiff, as his administrator, under the Michigan statutes, against the defendant, for causing his death. ”

“ 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 ”

“ 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 400 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 ”

“ 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 ”

“ Pennsylvania R. Co. v. Matthews, 36 N. J. Law, 531; Railroad Co. v. Killips, 88 Pa. St. 405; Railroad Co. v. Richardson, 25 Kan. 391; State v. Philadelphia, etc., R. Co., 47 Md. 76; Welsch v. Railroad Co., 72 Mo. 451; Frick v. Railway Co., 75 Mo. 595; Railway Co. v. Yundt, 78 Ind. 373; Hart v. Railway Co., 56 Iowa, 166, 7 N. W. Rep 9, and 9 N. W. Rep. 116; 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. ”