32 Mich. 510 (Mich. 1875), Michigan C. R. Co. v. Dolan

Citation:32 Mich. 510
Opinion Judge:Campbell, J.
Party Name:The Michigan Central Railroad Company v. Frank Dolan
Attorney:Higby & Gibson and G. V. N. Lothrop, for plaintiff in error. Austin Blair, for defendant in error.
Case Date:October 26, 1875
Court:Supreme Court of Michigan
 
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Page 510

32 Mich. 510 (Mich. 1875)

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

Page 511

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.

Page 512

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...

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