Seeley v. Chicago, Detroit & Canada Grand Trunk Junction Railway Co. , 1909 Mich. LEXIS 1066 ( 1909 )

Grant, J.

Plaintiff’s decedent, a boy eight years and three months old, was playing with four other boys in a puddle of water on Stone street, in the city of Port Huron, opposite the yard of the defendant’s tracks. Stone street runs north and south. The railroad tracks cross the street diagonally in an easterly and westerly direction. Three tracks cross the street. These tracks east of the road immediately branch off into side tracks, reaching manufactories located along the tracks to the eastward. The boys were in the road south of the track. A switch crew was engaged in switching cars. The switch engine was pulling two loaded cars and shoving a flat car to the eastward. Three of the boys, including the deceased, ran to the flat car in the attempt to get a ride. One of the boys testified that he got on top of the car. The other boy and the deceased stood with their feet on the brake beam, grasping the handholds on the southwest end of the car. The distance from the handholds to the brake beam was two feet and ten inches. After placing a coal car for the Minnesota Coal Company, the engine started to back up. The boy on the flat car jumped off, one upon the brake beam jumped off safely, but the deceased, in attempting to jump, fell under the wheels, and was killed.

Extended discussion is unnecessary. The case is expressly.ruled against the plaintiff by Katzinski v. Railway Co., 141 Mich. 75 (104 N. W. 409), and Hamilton v. Railway Co., 142 Mich. 56 (105 N. W. 82), and authorities there cited. See, also, Chicago, etc., R. Co. v. Smith, 46 Mich. 504 (9 N. W. 830, 41 Am. Rep. 177); Peninsular Trust Co. v. City of Grand Rapids, 131 Mich. 571 (92 N. W. 38).

Judgment reversed, and, inasmuch as no different state of facts can be shown upon a new trial, none will be ordered.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.