OSBORN v. DETROIT, GRAND HAVEN & MILWAUKEE RAIL- RAILROADS - ACCIDENT AT CROSSING - OBSTRUCTIONS TO VIEW— A driver who, because of the sun, is unable to see whether a Error to Ionia; Davis, J. Submitted November 3, 1897. Decided November 23, 1897. Case by Lucy L. Osborn against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Affirmed. Chaddock & Scully and A. A. Ellis, for appellant. L. C. Stanley (E. W. Meddaugh and Geer & Williams, of counsel), for appellee. HOOKER, J. The plaintiff was injured upon a highway crossing of defendant's railroad. The uncontradicted testimony shows that, for a distance of 50 feet back from the railroad, the train was plainly visible, yet it was not seen, according to the plaintiff's testimony, until the horse was upon the crossing, and the engine within 20 feet. The only excuse for not seeing it is that looking in that direction would be looking towards the sun. Where a train cannot be seen, by reason of obstructions, it is the duty of the drivers to stop and listen before attempting to cross a railroad. It is very improbable that a train of cars could have approached within 20 feet, without being seen or heard, if the plaintiff and her companion had been usually attentive, when others near by saw and heard it for over a mile; but if, as the plaintiff says, she looked down the road, but could not see whether the train was coming or not by reason of the sun, they should have taken other measures to know that they might safely attempt to cross. The case is within the principle of Richfield v. Railroad Co., 110 Mich. 406. The judgment is affirmed. The other Justices concurred. MOORE v. SAGINAW, TUSCOLA & HURON RAILROAD CO.1 1. CARRIERS-PASSENGER ON FREIGHT TRAIN. 2. SAME CONCUSSIONS-ASSUMPTION OF RISK-JUDICIAL NOTICE. The court will take judicial notice of the fact that it is difficult, if not impossible, to handle freight trains of varying length upon roads of varying grade without concussions; and passengers must be expected to recognize the difficulty, and to assume the risks incident to the methods of the business, where the crew handles the train with the highest degree of care which good railroading requires and permits under the circumstances. 3. SAME-LIABILITY FOR NEGLIGENCE. But, if a less degree of care is bestowed upon the management of the train, it is negligence; and, if a passenger is injured 'Rehearing denied January 25, 1898. On the question what risk is assumed by a passenger on a freight train, there is a collection of the authorities in a note to Ohio Valley R. Co. v. Watson's Adm'r, (Ky.) 19 L. R. A. 310. 115 103 s119 614 115 103 f124 422 115 103 s72NW1112 131 1465 d131 1546 4. SAME-EVIDENCE-QUESTION FOR JURY. The testimony of the crew of a freight train that the shunting of cars, whereby plaintiff, a passenger upon the way-car, was injured, was done with the highest degree of care consistent with the practical handling of the train, is not necessarily conclusive that such care was in fact exercised. 5. SAME-WITNESSES-COMPETENCY-FOUNDATION FOR TESTIMONY. Evidence that the plaintiff had been a passenger on freight trains many times, and had frequently seen them "come together," established his competency to testify that the shock on the occasion of the injury was the hardest he had ever experienced from coupling cars, although it did not specifically appear that he had been on such trains when couplings were being made. 6. SAME INJURY TO PASSENGER - CONTRIBUTORY NEGLIGENCE WHEN A MATTER OF LAW. The court is not justified in holding a passenger on a freight train guilty, as a matter of law, of negligence contributing to injuries received by him from the shunting of cars against the one in which he was riding, on the ground that he failed to guard against the danger, unless it clearly appears that he did not take the precautions usually exercised by ordinarily prudent men under the same circumstances. An instruction in an action for injuries to a passenger on a freight train, that, if plaintiff was lawfully on the cars, defendant was bound to carry him safely and that its responsibility for the safety of its passengers does not depend on the kind of cars in which they are carried, is misleading, as giving the jury to understand that the company is an insurer of the safety of its passengers, and that the same degree of protection is requisite on a freight train as on a passenger train. Error to Tuscola; Beach, J. Submitted November 6, 1897. Decided November 23, 1897. Case by James H. Moore against the Saginaw, Tuscola & Huron Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error. versed. Re L. T. Durand, for appellant. Sparling, Law & Moore (H. W. Stevens, of counsel), for appellee. HOOKER, J. The plaintiff entered the way-car of the defendant, which, with three or four car loads of stone to which it was attached, stood in the defendant's yard, at a station called "Reese," while the train crew was, to his knowledge, engaged in shifting cars, by shunting. As he came to a seat near the end of the car, he set his baggage down, and was in the act of sitting down, when one or more cars struck and were coupled to the forward stone car, the force of the blow being imparted to the way-car, through the car of stone, which did not move perceptibly. The result was that the way-car sprang back the length of the coupling link, and as quickly returned. The plaintiff and three other passengers were thrown down, and the plaintiff's ribs were broken and other injuries inflicted. The defendant has appealed from a judgment of $3,000, and contends: 1. That the declaration fails to state a cause of action. 2. That the defendant was innocent of negligence, as a matter of law. 3. That the plaintiff's injury was caused by contributory negligence. It appears that the defendant invited passengers to ride upon this train, but it is insisted that it was not thereby deprived of the right to pursue the usual methods of shifting cars, in doing the train work at the various stations, that those who run freight trains uniformly adopt, which is for the freight engine to push the cars, leaving them to be managed and coupled by the crew, without requiring the engine to remain attached until the coupling is made, which it is said would be productive of great delay. The evidence justifies the statement that the public was invited to take passage upon this train, which appears to have been what is commonly known as an "accommodation train;" and we cannot say that it was conclusively shown that the train was not ready for the reception of passengers. The train was not made up at Reese, which was a way station; and it is not clear that passengers were not expected to take the train in the yard, or that it was customary for the crew to stop the train at the station for passengers before leaving. One who takes passage upon such a train, where the object and principal business is the transportation of freight, cannot insist upon the same equipment as is usual upon regular passenger trains. He will be presumed to understand that different cars and couplings and brakes are used, and that cars must be coupled and uncoupled and shifted in the course of yard work at the various stations; that jars and jolts and jerks and concussions are incident to the ordinary management; and that these necessarily affect the equilibrium of persons standing in the car. We may take judicial notice that it is difficult, if not impossible, to handle trains of varying length and weight upon roads of varying grade without concussions; and passengers must be expected to know this, and assume the risks incident to such methods, where the crew handles the train with the highest degree of care which good railroading requires and permits under the circumstances. But, if a less degree of care is bestowed upon the management of the train, it is negligence; and, if a passenger is injured thereby, without being in fault himself, the company is liable. The following quotation from Elliott on Railroads (section 1582) supports this view: "A railroad company may, of course, carry passengers on its freight trains, and, when it does, it assumes, to a somewhat limited extent, the liability of a carrier of passengers; but all persons take the risk incident to the mode of travel they adopt, not, however, risks from negligence; and one who travels on a freight train assumes the risks incident to that mode of travel, as, for example, risks of injury from jerks or jolts incident to the movement of freight trains. In the case of Louisville, etc., R. Co. v. Bisch, 120 Ind. 549, Elliott, C. J., said: |