Brewer v. Flint & P.M. Ry. Co.

• Decision Date: 13 May 1885
• Citation: 23 N.W. 440,56 Mich. 620
• Parties: BREWER v. FLINT & P.M. RY. CO.
• Court: Michigan Supreme Court

23 N.W. 440

56 Mich. 620

BREWER v. FLINT & P.M. RY. CO.

Supreme Court of Michigan

May 13, 1885

Error to Wayne.

Griffin Dickinson, Thurber & Hosmer, for plaintiff and appellant.

Wm. L Webber, for defendant.

COOLEY, C.J.

Action to recover damages for personal injury caused by defendant's negligence. The declaration avers that on the nineteenth day of December, 1881, and for a long time prior thereto, the defendant owned, maintained, and operated a railroad, with accompanying locomotives, engines, and cars and employed the plaintiff as a brakeman and car-coupler upon its cars used by it in and about operating its road, and thereupon it became and was the duty of defendant at all times to use due and reasonable care in providing for use by plaintiff, upon its said road, properly constructed cars, and at all times to use reasonable care and diligence in keeping the same in a good, safe, and proper condition of repair, so that the same might be in a condition reasonably safe to the life and limb of the brakemen and car-couplers when employed in and about them in the course of their employment; that on the day and year last aforesaid, the defendant, disregarding its said duty, willfully and negligently caused to be used upon its road, and upon a freight train upon which plaintiff was employed as a brakeman and car-coupler as aforesaid, a certain car commonly called a caboose, then and for a long time prior thereto in a condition wholly unsafe and out of repair, in this, that the spring supporting the draw-bar on the end of said caboose had become and was weak, and insufficient to support the same, by reason whereof said draw-bar had fallen below its usual and proper place upon the end of said caboose, which condition of said caboose, on the day and year aforesaid, and for a long time prior thereto said defendant well knew, or by the use of reasonable care might have known; that on the day and year last aforesaid, at New Boston, a station on the said road, while the plaintiff in the discharge of his duties as a brakeman and car-coupler upon said freight train, was attempting to couple said caboose to a car upon the end of said train, backing down to said caboose for that purpose, without fault on the part of said plaintiff, and when he was exercising due care and ignorant of the condition of said caboose, by reason of the draw-bar on the end of said caboose being out of place and lower than usual, the draw-bar on the end of the car on the end of said train passed over the draw-bar on said caboose, bringing said car and said caboose together with great force and violence, and catching the plaintiff and so crushing and bruising the right arm of said plaintiff that the same had to be cut off, and otherwise permanently wounding and injuring him.

On the trial the plaintiff testified on his own behalf that he was 40 years of age; that he entered the service of defendant as a brakeman in November, 1881; that "on the morning of the nineteenth of December, 1881, we took our train--a freight train--as usual, from Wayne to go to Monroe, in the state of Michigan, that being our regular run, from Wayne to Monroe and return. The train was made up at Wayne in the ordinary way, just by the shipment of cars, pushing them to get them in station rotation. We were due to leave at 8:30 we usually got out between 8 and 10 o'clock. The way in which the accident which then happened to me occurred, was as follows: We had to couple charcoal cars to get out of the side track at New Boston--the usual mode of doing that work, as there is an order to take the cars at least twelve cars back from the engine, in the train. New Boston cars would come next to the caboose. We pulled the engine over the switch and stopped the way car this side, and we would leave room enough to kick the other cars into it. The conductor cut the way car off. I was on the top of the train, and we stopped it. After we had stopped the train by the switch and backed the engine over the side track, and kicked the other two cars onto the caboose, I stood there by the caboose to make the coupling. I jumped off to make the coupling, and as the cars came together I reached in in the usual way to make the coupling, but instead of the link dropping, the car passed over--that is, the draw-bar passed over--and shut me in there, catching my arm between the two cars. I had hold of one corner of the car, and the other cars came together and caught my elbow. The usual way in making couplings is to stand, looking towards the head of the train on the left-hand side. I stood with my back to the cars that were coming to me. You usually leave the dead car with link standing up in this manner in the hole, and as they come together you reach in with the hand and take up the link and enter it. The pin usually falls into its place, but if not we reach up and put it in. The cars that were coupled were F. & P.M. cars. One was a way car and the other was a charcoal car. Ordinarily, there is no difference in height in their construction. The engine, when the cars were kicked down, was detached from the train, and they came together with the engine detached. Part of the time I knew what the effect was of these being different cars in height, and part of the time I didn't. Of course, the first thing I knew I was shut in there fast, and I could not get out. A couple of passengers in the way car I motioned to. I could not speak; and I beckoned to them with my head to come down, and they did come and tried to pry the cars apart, and got several men with levers to pry them apart, but could not, and I then lost myself for a time. My arm was caught between the ends of the two cars. I was caught all the way from my hips up. The sill of the car I think must have caught me right below the hip joint. I know there was a very sore spot on the back of my thigh, the way the car had caught me. The platform on the end of it was bent back; there was a platform on the way car, and there the pressure was not so great above as it was below. The severest injury was about the hips and the small of the back. They attempted to pry the cars apart, but could not; and some one had gone and got the engine, which had gone to the head of the train, and it backed down there and coupled onto the cars and pulled them apart, before they could get me out. They set the brake on the way car and pulled the others away from it. Then they took me onto the pilot of the engine, and carried me to the station, and placed me on a settee, and notified my family." When plaintiff next saw the caboose car, some eight or nine weeks after his injury, it had not been repaired. The cause of the accident, he thought, was from one end being lower than the other from weakness of the springs. When in proper repair and good condition, cars come squarely against each other on the same line. The cars of the defendant should come together even. Plaintiff had always found them to do so. In the ordinary business of the company there are cars on the track so...