16 N.W. 634 (Mich. 1883), Hathaway v. Michigan Cent. R. Co.

Citation:16 N.W. 634, 51 Mich. 253
Opinion Judge:[51 Mich. 254] SHERWOOD, J.
Party Name:HATHAWAY v. MICHIGAN CENT. R. CO.
Attorney:Conely, Maybury & Lucking, for plaintiff. Gibson, Parkinson & Ashley, Ashley Pond, and H. Russell, for defendant and appellant.
Judge Panel:COOLEY and CAMPBELL, JJ., concurred.
Case Date:October 03, 1883
Court:Supreme Court of Michigan
 
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16 N.W. 634 (Mich. 1883)

51 Mich. 253

HATHAWAY

v.

MICHIGAN CENT. R. CO.

Supreme Court of Michigan

October 3, 1883

The omission of a railroad company to warn an inexperienced brakeman of the specific danger of coupling cars that are furnished with double dead-woods does not make the company liable for an injury received by him in so doing, if the risk is such as to be manifest to any person, and if, on being employed, he was warned in general terms of the danger of coupling cars of different construction, and was told not to take any chances.

Error to Jackson.

Conely, Maybury & Lucking, for plaintiff.

Gibson, Parkinson & Ashley, Ashley Pond, and H. Russell, for defendant and appellant.

[51 Mich. 254] SHERWOOD, J.

The plaintiff brings this suit against the Michigan Central Railroad Company for damages sustained by him while in the company's employment as a brakeman, alleging that while making coupling of cars at Niles, as directed by the company's agent, his arm was caught between the bumpers and crushed in such manner as to render amputation necessary; and that the injury was caused by the negligence of the company in not informing the plaintiff of the dangerous position he was called upon to occupy, and the nature, character, and action of the machinery used for the coupling, and the particular dangers to be encountered in making the connection. The plaintiff obtained a judgment at the circuit for $9,000 damages, and the defendant brings error.

The record contains the substance of all the testimony and proceedings had at the circuit, and all the exceptions relate to the charge of the court as given, and to the refusals to charge. The plaintiff was reared in Jackson county, and was 24 years of age when he entered the service of the defendant. It is not questioned but that he is a man of ordinary understanding, and of full average intelligence. He had traveled some, but had no experience in railroading, except that he worked a few weeks in 1871 distributing spikes upon the Davenport & St. Paul Railroad, and in 1877 a few months in track-repairing on the M., K. & I. Railroad, and this experience, he says, did not bring him in contact with the construction of freight cars. He was received into the defendant's service as a brakeman, and entered upon the discharge of his duties on a freight train, his run being between Jackson and Michigan City. Plaintiff made his first two trips with Conductor Hulitt, who told him, when he came on his train, of the dangers incident to the business; to be careful in coupling, and to take no chances. He cautioned him in regard to the cars; told him defendant had cars of all makes and descriptions; and some had dead-woods and some had not; and he allowed him to make couplings on the second trip. Mr. [51 Mich. 255] Sullivan, the brakeman who was with him when he made his first trip, told him that braking was a dangerous business, and that coupling was a dangerous part of braking; to be careful in making couplings, and if the cars did not come back right to step out; that the cars were of different heights; and they sometimes used a crooked link in coupling; and watched him when he made his first couplings. The engineer, on his first trip, also cautioned the plaintiff, and told him there was much danger; to be careful in running over the cars, and look out for himself. Conductor Day also told plaintiff, on the trip he made with him, that all couplings were dangerous; to be careful; to look out for flat cars loaded with lumber or iron, as it projected over; that he must take care of himself in every way.

The company also, after he had made his first trip, presented him with a

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time-table which contained the rules or instructions of the company to its employes on trains, and directed them where they might find all information necessary in discharging their duties, and containing warnings as to special dangers; and these instructions plaintiff says he read before making his second trip. The plaintiff, aside from his own experience, learning, and observation, the evidence tended to show, was thus forewarned before the injury complained of occurred; indeed, to this extent the defendant's testimony is not denied. He had also made three round trips on the defendant's freight trains and made several couplings of the Michigan Central cars, and when injured was making his fourth trip, having been to Michigan City, and was on his return as far back as...

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