Gardner v. Michigan Cent. R. Co.
| Decision Date | 06 January 1886 |
| Citation | 26 N.W. 301,58 Mich. 584 |
| Court | Michigan Supreme Court |
| Parties | GARDNER v. MICHIGAN CENT. R. CO. |
Error to Berrien.
O.W Coolidge and Edward Bacon, for plaintiff.
Edwards & Stewart, for defendant and appellant.
This is an action of trespass on the case, brought by the plaintiff to recover damages for injury sustained by him on the morning of the sixteenth day of May, 1882, at the city of Niles while attempting to uncouple cars in a moving train, and while in the service of the defendant. The cause was tried at the Berrien circuit, before Judge SMITH, by a jury, at the February term, 1884, and a verdict was rendered for the plaintiff for $5,000 damages. Defendant brings error.
No question is raised upon the pleadings. From the record it appears that in the city of Niles, Fifth street, running north and south, crosses the Michigan Central Railroad tracks. At this crossing, besides the main track, there are of all kinds, six others. These several tracks occupy a large portion of defendant's right of way at this crossing, and 32 feet of the traveled part of Fifth street was very well planked between the tracks by the company with pine planks, three and one-half inches thick, and which were laid new the fall before the injury complained of occurred. The company's station-house, dining-hall, and freight-house, and other depot buildings at Niles, were located at this point, and a large number of trains were arriving and departing during the day and night. The services of a number of men in the yard and freight-house, and about the grounds, were required to look after and do the business at the station. Mr. Gregg was station agent during 1882 at Niles, and had been for more than 30 years. E.D. Bachelor was yard-master, and had been years before. He had control of all the help in the yard, but was not at the station much during the night; and when he was absent he left one of the men employed in the yard, named Etzcorn, in charge. It further appears that near the south-east corner of the planking in Fifth street, and about 12 or 15 feet therefrom, stood a switch. This switch moved the track south in adjusting it for the passage of trains, and at some time previous to the morning the injury occurred to plaintiff, (the exact time, however, is not shown by the record,) owing to the failure of a proper adjustment of the switch, a car-wheel had struck the end of a plank next to the rail of the track, breaking it, and crushing it down, making a hole in the surface seven or eight inches long, and between three and four inches wide. This appears to have been the only defect anywhere in the planking or grounds about the station or yard. It further appears that it was the duty of the yardmen to examine and make discovery of any defect in the planking or other places in the yard, and at once repair the same, and call on the track-master for the necessary materials for that purpose, when they were not on hand at the station.
The plaintiff was a resident of Niles, and had been for 18 years, at the time he received his injury; was 45 years of age, and had been in the employ of the company continuously in various capacities for 10 years. He had worked with a gravel train, and afterwards at the freight-house and yard at Niles for 10 years, and, immediately previous to the accident, had for six months been one of the yardmen working under the direction of Mr. Bachelor, the yard-master. His immediate business at the time he was hurt was that of night switchman, working from 6 o'clock in the evening until 7 o'clock in the morning, and was employed most of his time at the east end of the yard, from Fifth street east. His work was to tend switches for trains going east and west, and see that they got water, and when his work was done he had orders from Bachelor to help the other men make up trains. The plaintiff says, in his testimony, when he went to work upon the yard Bachelor employed him as night switchman; that there was no danger about that business; that Gregg, on the sixteenth of May, 1882, had general charge of the station, but not of the yard; that on the seventh of February previous, Gregg told him "not to undertake to couple cars;" that on the morning of that day he was helping a brakeman, and got caught by a car; and Bachelor and Gregg both came to him, and told him that was not his business; that he should let the cars go, and attend to his business; that at about half past 5 o'clock in the morning of the sixteenth of May, 1882, and about five minutes before he was injured Etzcorn was coming out of the freight-house with an engine and five cars, and had cut off the end car and got upon top of it to hold it. Plaintiff then asked him where he wanted those cars. Etzcorn replied, "One in and one out;" to which plaintiff answered: "Then set the switch over, and motion the engineer ahead," and stepped in to uncouple the cars, pulled the pin, and laid it on the dead-wood. The cars were in motion at the time, going west, and he moved along between them as the cars moved, until he got ready to come out, when his right foot caught in the hole in the planks before mentioned, and held him. He looked back to see what held it, and did not have time to get his foot out before the brake struck him and knocked him down, and, after being carried several feet, the car-wheel came upon his left leg, crushing it to the thigh, rendering amputation necessary. It further appeared from the testimony of the plaintiff that at the time of the accident it was light; that he could see pretty good; that he did not know of the defect in the plank,--if he had, he could have seen it; that he might have passed it a hundred times, and not have seen it; that it was of such a character, if his attention had not been called to it, he could not have seen it; that he never discovered any defect in the planking at that crossing before; that he had always regarded it as a good and proper crossing for the purpose and place; and that he was familiar with the station grounds. The foregoing facts were all uncontroverted by the plaintiff, and most of them appeared on the plaintiff's own testimony.
The other testimony went strongly to show that the existence of a defective plank was known only to two of defendant's yard hands, and they both swear that they never had made the fact known to the company or to the yard or station masters; and Mr. Bachelor testifies that when he hired the plaintiff he gave him express instructions what he wished him to do; "directed he should not pull pins, or do any coupling in any way:" that he forbade his doing this again in November following, and that he never countermanded that direction; that there was other business in the yard for the plaintiff to do.
The plaintiff now seeks to recover the damages he has sustained in the loss of his limb, alleging in the declaration negligence on the part of the defendant in suffering the defect in the plank described to continue unrepaired until it occasioned his injury, and averring no neglect on his part contributing to the accident.
The defendant, in making its defense, claimed (1) that the defect in the planking was a very slight one, not known by the company to exist at the time the injury occurred; that the plaintiff was an employe of the company; that his duties in the yard required him to look after such defects when they occurred, and that his particular business, and its locality, furnished him with as good, if not better, opportunities to have known of the defect complained of than the occupation and duties of any other employe of the company. (2) That such defect, if one existed, in the planking, which caused his injury, if the result of negligence at all, was that of a fellow-servant, and of which the company had no previous notice, and was therefore a part of the risks which the plaintiff assumed when he entered the employment of the company as incident thereto. (3) That it was negligence on the part of the plaintiff to attempt to do what he did while the cars were in motion, and that such negligence was really the cause of the injury. (4) That what he did was in actual disobedience of the orders of the yard-master, under whose control and direction he was required to serve, as well as those of the station agent, and without the request of any one. That for these four reasons the plaintiff ought not to recover.
The undisputed proofs show in this case that the defect in the planking complained of was one which might occur any day from slightly misplacing a switch, or the accidental derailing of a truck-wheel, or from various other causes purely accidental; that the injury to the plank was so small as to escape the notice of all the persons in the yard except two and even that of the plaintiff, who was daily within 10 or 12 feet of it, from once to a dozen times a day, and it would appear that even the two persons who did see it did not deem it of consequence enough to report it to the yard-master, or repair it themselves, it being their duty so to do if it was dangerous,...
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