Johnson v. Detroit & Mackinac Railway Co. ( 1905 )

Hooker, J.

A former opinion in this cause has disposed of many questions that might otherwise require consideration upon this record. It will be found in 135 Mich. 353. As will be seen from that case, the plaintiff had recovered a verdict and j udgment against the defendant railroad company for the loss of stock killed by defendant’s train. According to the brief of the defendant, the negligence relied on was (1) that the cattle guard was allowed to remain dented and flattened so that cattle could cross it; (3) that the “ glance fence ” did not extend up to the cattle guard, but left a strip of ground shown to be nine inches wide, thus affording opportunity for the cattle to pass. The glance fence was a fence built parallel with the railroad. Theoretically, it should be built close to the cattle guard; and in this case it was inclined so as to accommodate the wider portions of the cars, above the running gear. In this case the inclination from the track was about 45 degrees. The defendants urged that the glance fence was set as close to the cattle guard as the passage of trains would permit, and that was all that the law required, that this pattern of guard was made of a certain standard width, and that the approval of such pattern by the railroad commissioner precluded the claim that it should have been wider, so that it could extend far enough to make it practicable to build the glance fence up close to it. It would be unreasonable to suppose that the installation of a cattle guard, with nothing to prevent cattle passing by the side of it, would be a compliance with the statute. It was the manifest intention that the gap should be closed, except a sufficient space for the passage of trains, and that the portion thus left open should be protected by a cattle guard of approved pattern. If there was a strip broad enough for cattle to walk upon, the law was not complied with. There was no error in submitting to the jury the question whether this glance fence and cattle guard were negligently constructed.

Counsel complains that the court instructed the jury that it was defendant’s duty to put in such a cattle guard as would prevent cattle from passing, which made defendant an insurer. An examination of the portions of the charge complained of does not establish this claim.

Error is assigned upon the alleged charge that the opinions of experts in relation to the safe condition of the guard “were not binding upon the jury.” This is not a full quotation of the language of the judge. When read with other comments accompanying it, no fault can be found with it. The same language was approved on the former hearing.

There are a few other assignments of error, but our examination convinces us that they are baseless, and that no useful purpose would be subserved by discussing them.

The judgment is affirmed.

Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred.