Mensing v. Michigan Central Railroad

76 N.W. 98, 117 Mich. 606, 1898 Mich. LEXIS 921

• Court: Michigan Supreme Court
• Decided: July 12, 1898
• Status: Published

Opinion

Grant, C. J.

(after stating the facts). 1. Defendant urges that no negligence was shown, because the place where plaintiff was invited to alight was safe in the daytime, and was only rendered unsafe by the snow, and that the sudden fall of snow was therefore the approximate cause of the accident. It is sought to apply to this case the rule that municipalities are not liable for damages resulting from natural accumulations of ice and snow. There may be situations where this rule will apply, but it is not applicable to the present case. - It was held in Piquegno v. Railway Co., 52 Mich. 40 (50 Am. Rep. 243), that a railroad company does not owe the duty to its employés to remove the snow and ice from the ground along its track, even in proximity to depot platforms. In Canfield v. Railway Co., 78 Mich. 356, the company was held liable to a pedestrian falling upon an accumulation of ice caused by the freezing of water dripping from the water-spout of its water;tank upon the sidewalk. These are the only two cases cited from this court, and we do not recall any others involving accumulations of ice and snow.

Plaintiff was a stranger, was invited to alight, and had the right to presume that the place was reasonably safe. Counsel for the defendant appear to concede that, if a passenger was invited to alight at such place in the night, it would he negligence not to warn him of the danger, and take reasonable means to assist him in alighting. The brakeman was chargeable with knowledge of the location of the track. A little effort on his part with his foot would have removed the snow from the rail, and showed a safe place to alight. The danger was, or should have been, known to defendant. It was not, and could not have been, known to the plaintiff. Cartwright v. Railway Co., 52 Mich. 606 (50 Am. Rep. 274), states the rule governing this case, as follows:

“If a car in which there were passengers was not standing where it would be safe for them to alight without assistance, it was the duty of the company to provide assistance or give warning, or to move the car to a more suitable place. ”

See, also, the authorities cited in that case.

The case was properly submitted to the jury.

2. This case was twice ‘tried, the first jury rendering a verdict for the defendant. That verdict was set aside by the trial judge, and a new trial ordered. It is urged that plaintiff changed his testimony in the last trial from what it was in the first as to the place where he alighted. On account of this discrepancy, counsel urge the verdict ought not to stand. It is claimed that on the first trial he located the place where it was impossible for him to have stepped upon the rail, while upon the second trial he located it farther west. We do not think there was such discrepancy as to justify us in reversing the case. We think it was a question for the jury, and we see no occasion for disturbing their verdict.

Judgment affirmed.

The other Justices concurred.