Michigan C. R. Co. v. Dolan

• Citation: 32 Mich. 510
• Court: Supreme Court of Michigan
• Decision Date: 26 October 1875
• Parties: The Michigan Central Railroad Company v. Frank Dolan

32 Mich. 510

The Michigan Central Railroad Company v. Frank Dolan

Supreme Court of Michigan

October 26, 1875

Heard October 14, 1875

Error to Jackson Circuit.

Judgment reversed, with costs, and a new trial granted.

Higby & Gibson and G. V. N. Lothrop, for plaintiff in error.

Austin Blair, for defendant in error.

OPINION

Campbell, J.

Dolan who was engineer of a passenger train on the Michigan Central Railroad, was seriously injured by reason of a collision with a freight train. It became necessary, to save his life, that he should jump from his engine while going very fast, and he was crippled by the fall. The conductor of the freight train, William Crofoot, had been running under telegraphic orders from Michigan City to Buchanan, where the accident happened. At that point he received a dispatch which made it his duty to wait for the other train. Either failing to read or to understand it, and omitting to give it to his own engineer before starting, which was his duty under the rules of the company, he started his train, and did not give the telegram to the engineer until too late to avoid the collision.

Dolan sued the company for damages, alleging as a reason for taking the case out of the rule which exempts employers from liability to servants for negligence of their fellow servants, that Crofoot was not a competent conductor, and was that morning under a special temporary incompetency, from drowsiness and weakness caused by fatigue, and that this was known to the company before he took his train from Michigan City.

The facts alleged to show general incompetency known to the company were, that he was put on the list of conductors about eight months before the accident, after having been employed as brakeman for a somewhat longer period; and that on one occasion, having made a mistake as to the rights of a passenger on a freight train, and carried him beyond the place for which he had a ticket, he complained of his own want of knowledge, and told Mr. Hopper, the agent in charge at Michigan City, who had appointed him, that he did not feel as if he was capable of running a train. He, however, continued as before, and there was no farther complaint or trouble.

The special incompetency alleged in the proof was, that when he was awakened by the person whose duty it was to awaken and call the conductors who were to run trains, he told the caller he did not feel able to go, and the latter told him he would have to go, because there was no one else to go. He was called about midnight, and the train left about two hours thereafter.

There is some question whether the declaration avers any thing which would authorize proof of general incompetence; but, as we think there is no proof either that Crofoot was incompetent or that there was any reason to suppose it, that question becomes immaterial.

The uncontradicted proof shows that Mr. Hopper, the train manager at Michigan City, had a very long experience in railroad service, and that he appointed Crofoot to act as a freight conductor in accordance with the uniform practice of the company, in advancing persons after a preliminary experience as brakeman. It also shows that Crofoot had maintained a good standing, and that no fault had been found with him, except by himself for his own single blunder in regard to a passenger. This had no tendency whatever to show unfitness. It rather tended to show a conscientious desire to correct his mistakes, and obtain more complete knowledge of his duties.

The only notice to any of the company's agents, concerning Crofoot's condition that morning, was the remark he made to the person who called him. That person's business was to call the conductors in a certain order, when trains were ready, and if one could not go,...