Kaiser v. Detroit & Northwestern Railway

Michigan Supreme Court

Kaiser v. Detroit & Northwestern Railway

91 N.W. 752, 131 Mich. 506, 1902 Mich. LEXIS 678

CourtMichigan Supreme Court

DecidedOctober 7, 1902

DocketDocket No. 67

StatusPublished

Cited by2 cases

This text of 91 N.W. 752 (Kaiser v. Detroit & Northwestern Railway) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kaiser v. Detroit & Northwestern Railway, 91 N.W. 752, 131 Mich. 506, 1902 Mich. LEXIS 678 (Mich. 1902).

Pincite

Opinion

Montgomery, J.

The declaration averred that the defendant railway tore up and excavated the highway known as “ Grand River Avenue,” making a ditch or hole in the traveled way, and left the same unprotected, and that plaintiff, while riding with one Conroy, was thrown upon the track of defendant’s railway because of the wheel of the vehicle dropping into the ditch.

The evidence tended to show that the defendant’s track occupied a portion of a 16-foot traveled way, and that the space occupied by the track had been cut down 16 or 18 inches; that, in the evening, plaintiff was driving with Conroy, and the wheel dropped down into this excavation. Plaintiff was thrown from the wagon, rendered unconscious, and was afterwards, while in this unconscious state, injured by the defendant’s passing car.

The circuit judge directed a verdict for defendant on the ground that plaintiff had not shown that the defendant railway was acting without authority in constructing its road in the manner in which it did. We think this was error. The defendant company was at least prima facie bound to restore the surface of the street to a condition reasonably safe for travel. 2 Thomp. Neg. § 1354; Maltby v. Railway Co., 52 Mich. 108 (17 N. W. 717); Jeffrey v. Railroad Co., 108 Mich. 221 (65 N. W. 755, 31 L. R. A. 170); People v. Railroad Co., 67 Ill. 118; Woodman v. Railroad Co., 149 Mass. 335 (21 N. E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427); Inhabitants of Veazie v. Railroad Co., 49 Me. 119; Schild v. Railroad Co., 133 N. Y. 446 (31 N. E. 327, 28 Am. St. Rep. 658); Booth, St. Ry. Law, §§ 290, 291. True, if the defendant constructed its railway as directed by the municipal authorities, acting within the powers conferred upon them, no negligence could be imputed to it. 2 Thomp. Neg. § 1364. But it is not to be presumed that authority to create a nui[508]*508sanee was granted, and we are of the opinion that the burden of showing such authority rested with defendant. McKillop v. Railway Co., 53 Minn. 532 (55 N. W. 739).

It is contended that the testimony shows negligence of the driver. This question was not ruled by the circuit judge, and need not be discussed further than to say that we do not think such negligence conclusively appears.

Judgment reversed, and a new trial ordered.

Hooker, O. J., Moore and Grant, JJ., concurred.

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Montgomery, J.

The declaration averred that the defendant railway tore up and excavated the highway known as “ Grand River Avenue,” making a ditch or hole in the traveled way, and left the same unprotected, and that plaintiff, while riding with one Conroy, was thrown upon the track of defendant’s railway because of the wheel of the vehicle dropping into the ditch.

The evidence tended to show that the defendant’s track occupied a portion of a 16-foot traveled way, and that the space occupied by the track had been cut down 16 or 18 inches; that, in the evening, plaintiff was driving with Conroy, and the wheel dropped down into this excavation. Plaintiff was thrown from the wagon, rendered unconscious, and was afterwards, while in this unconscious state, injured by the defendant’s passing car.

The circuit judge directed a verdict for defendant on the ground that plaintiff had not shown that the defendant railway was acting without authority in constructing its road in the manner in which it did. We think this was error. The defendant company was at least prima facie bound to restore the surface of the street to a condition reasonably safe for travel. 2 Thomp. Neg. § 1354; Maltby v. Railway Co., 52 Mich. 108 (17 N. W. 717); Jeffrey v. Railroad Co., 108 Mich. 221 (65 N. W. 755, 31 L. R. A. 170); People v. Railroad Co., 67 Ill. 118; Woodman v. Railroad Co., 149 Mass. 335 (21 N. E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427); Inhabitants of Veazie v. Railroad Co., 49 Me. 119; Schild v. Railroad Co., 133 N. Y. 446 (31 N. E. 327, 28 Am. St. Rep. 658); Booth, St. Ry. Law, §§ 290, 291. True, if the defendant constructed its railway as directed by the municipal authorities, acting within the powers conferred upon them, no negligence could be imputed to it. 2 Thomp. Neg. § 1364. But it is not to be presumed that authority to create a nui[508]*508sanee was granted, and we are of the opinion that the burden of showing such authority rested with defendant. McKillop v. Railway Co., 53 Minn. 532 (55 N. W. 739).

It is contended that the testimony shows negligence of the driver. This question was not ruled by the circuit judge, and need not be discussed further than to say that we do not think such negligence conclusively appears.

Judgment reversed, and a new trial ordered.

Hooker, O. J., Moore and Grant, JJ., concurred.

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Bluebook (online)

91 N.W. 752, 131 Mich. 506, 1902 Mich. LEXIS 678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaiser-v-detroit-northwestern-railway-mich-1902.

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