Ecliff v. Wabash, St. L. & P.R. Co.

• Decision Date: 13 January 1887
• Parties: ECLIFF, Adm'x, v. WABASH, ST. L. & P. RY. CO.
• Court: Michigan Supreme Court

31 N.W. 180

64 Mich. 196

ECLIFF, Adm'x, v. WABASH, ST. L. & P. RY. CO.

Supreme Court of Michigan

January 13, 1887

Error to Wayne.

E.H. Sellers, for plaintiff and appellant.

Alfred Russell, for defendant.

MORSE J.

The plaintiff brought suit for damage for the negligent killing of her son, a boy 12 years of age. The jury were directed by the court below to find a verdict for the defendant. The plaintiff's intestate, and another boy, Edward Diedrich rode on a freight train of defendant to Delray; waited around there until the train was ready to return to Detroit, and then they climbed upon the freight car next to the engine with the intention of riding back to the city. They remained on the top of this car some time; but, on account of the sparks flying back upon them from the smoke-stack of the engine, they left the car, and got upon the front of the engine, which was pulling the train, tender foremost. They were riding on the front part of the engine when it collided at the foot of Twenty-first street, in the city of Detroit with another of defendant's engines, by which collision the plaintiff's intestate was killed, and Diedrich lost a leg. The boys rode out to Delray in the afternoon, and started on their ride back about 6 P.M. Delray is about three miles outside of the city limits. The collision occurred October 15, 1883. It was shown upon the trial that plaintiff's intestate, and other boys of like age, and older, frequently rode on these trains to Delray, and back again to the city, and that at least one conductor allowed them to do so.

Diedrich was a witness, and testified that Bailey, the one that had permitted the boys to ride on the train, was the conductor, but thinks the brakeman on the last car had charge of the train coming into Detroit that night. "The brakeman who brought the train in that night saw me on the train. He was nearly on the last car. He saw me get on, I know, because he was looking right at us. I did not see any other brakeman there. *** I saw the engineer. Well, he was looking. I don't know if he was looking at us. We were on the first car next to the engine. I was on top of the car, and Ecliff was with me. The engine was right in front of it. I think the smoke-stack would have been in the way to prevent the engineer from seeing us on this car. There was a window that they looked out of in front. There was nothing to prevent his looking out of that window, and seeing us on the car. If he had looked back, he would have seen us. From where he stood to about where we sat was about fifteen feet. I saw the fireman." At the time of the collision the boys were sitting right in front of the boiler on the engine. From there they could not see the engineer, or he them. When the boys rode out to Delray, the train was in charge of Bailey. They rode on top of a car, some half dozen or more cars from the engine. Diedrich swears Bailey saw them at this time, and that he was also on top of the cars, between the boys and the engine, and standing up. "We had ridden on this train before often. I could not tell how many times. We usually rode on top of the freight cars, and sometimes got on the front part of the engine. *** When we got on the cars from time to time, we were where the conductor could see us getting on. When we got on the cars, he would be on the top of the train. He could see us get on the cars. *** Generally there would be a brakeman and one conductor,--a brakeman on the back end." The same conductor and train hand who ran the freight train out to Delray in the afternoon ran the 6 o'clock P.M. train into the city.

The rules of the defendant company forbid conductors, brakemen, engineers, and all others connected with the running of trains, to permit or allow any person or persons to ride upon the engine or tender, except certain officers and employes of the road, without permission from the general or division superintendent, or in case of storms or accident. Freight trains were only allowed to carry passengers when specified in the time-tables. This train was not so specified. These boys were not passengers in the strict sense, however, as they paid no fare; and, if not stealing rides, were taking free passage for their own sport, under license from the conductor or other train hands.

Mr. Dewey, who at the time was night yard-master, testifies that he acted as conductor from Delray into Detroit, the night of the accident, of this train upon which plaintiff's intestate was riding. He swears that there were 15 cars in the train. The switch-engine was pulling the cars down, moving backward, tender foremost. A part of the cow-catcher was taken off, and a step put on for the accommodation of the switchman. A boy or man could sit there. Dewey says he was on top of the cars, about the middle of the train, coming into the city. He claims he did not see the boys until after the accident, and that it was dark when the train left Delray. "We lit the headlight." Thinks "it was sufficiently dark to interfere with seeing persons the length of seven cars with distinctness." During the trip Dewey remained on top of the cars. He moved both ways on the cars, probably three or four car-lengths, and up to the third car of the engine. "I might have been on the first car during the trip. Would not say positively."

The conductor Bailey was not sworn, but there was evidence tending to show that he and his brakemen were cognizant of boys frequently riding on the trains, and permitted them to do so.

Diedrich was recalled after the testimony of Dewey, and recognized him as the man he saw on the top of the train, who he thought was a brakeman in charge of it.

H.H Jeanette, the engineer on the train, testified that he did not see either of the boys upon the train until after the collision. He then saw Diedrich getting off. He had a copy of the rules, and never knowingly permitted any boys to ride upon the train. He admitted that he had seen boys riding upon the top of the cars, and in such cases he did not stop unless he received a signal from the conductor. "I saw two boys at Delray when we arrived there. Part of the time they were on top of the cars, part of the time on the ground. I supposed afterwards these boys hurt and killed were the two boys; I don't know that they were." He further testified that he had seen boys riding on top of the cars both ways, and he did not stop to put them...