33 Mich. 133 (Mich. 1876), Fort Wayne, Jackson & Saginaw Railroad Co. v. Gildersleeve
|Citation:||33 Mich. 133|
|Opinion Judge:||Cooley, Ch. J.|
|Party Name:||The Fort Wayne, Jackson & Saginaw Railroad Company v. Juliza A. Gildersleeve|
|Attorney:||John D. Conely, for plaintiff in error. F. & R. Livermore and G. T. Gridley, for defendant in error,|
|Case Date:||January 05, 1876|
|Court:||Supreme Court of Michigan|
Heard October 29, 1875
Error to Jackson Circuit.
Judgment reversed, with costs, and a new trial ordered.
The plaintiff, as administratrix, has recovered against the defendant a judgment for damages occasioned by the killing of the intestate, who was a servant in defendant's employ. The accident occurred while the intestate was engaged in coupling two cars, one of which was lower than the other, rendering the act of coupling peculiarly difficult and dangerous. The gravamen of the complaint is, the negligence of defendant in making use of this low car, and subjecting its servants to the consequent risks. It is not claimed that the difficulty and danger were unknown to the intestate; on the contrary, much evidence was given on the part of the plaintiff to show that the danger was well understood by the
intestate and that the car had a bad reputation among the employes of defendant. What the bad reputation was for does not very distinctly appear, though the evidence tends to show that it was rather because its construction,--it being an old mail car,--made it inconvenient for use, than for any other reason. This, however, is not very material. No question is made but that any difficulty that existed in coupling the car was understood by the intestate.
The question in the record is, whether there was any evidence tending to establish a claim against the defendant. On the argument it has been assumed on both sides that the rule of law which leaves the servant to bear the consequences of all the ordinary risks incident to his employment ought to remain undisturbed. Both parties rely upon the case of Davis v. Detroit & Milwaukee R. R. Co., 20 Mich. 105, in which that rule was examined and approved, as a rule reasonable in itself as it affected the particular relation of employer and employed, and as being...
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