23 N.W. 440 (Mich. 1885), Brewer v. Flint & P.M. Ry. Co.

Citation:23 N.W. 440, 56 Mich. 620
Opinion Judge:[56 Mich. 621] COOLEY, C.J. SHERWOOD, J.
Party Name:BREWER v. FLINT & P.M. RY. CO.
Attorney:Griffin, Dickinson, Thurber & Hosmer, for plaintiff and appellant. Wm. L. Webber, for defendant.
Judge Panel:CAMPBELL and CHAMPLIN, JJ., concurred.
Case Date:May 13, 1885
Court:Supreme Court of Michigan
 
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23 N.W. 440 (Mich. 1885)

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.

[56 Mich. 621] 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 [56 Mich. 622] 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

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couple charcoal cars to get out of the side track at New Boston--the usual mode of doing that...

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