Hewitt v. Flint & P.M.R. Co.

Citation34 N.W. 659,67 Mich. 61
PartiesHEWITT v. FLINT & P.M.R. CO.
Decision Date06 October 1887
CourtSupreme Court of Michigan

Error to circuit court, Saginaw county; CHAUNCEY H. GAGE, Judge.

Case by John A. Hewitt, appellee, against the Flint & Pere Marquette Railway Company, appellant, to recover $50,000 damages for personal injuries sustained by him, while an engineer in its employ, by reason of its alleged negligence.

W.L. Weber, (Wisner & Draper, of counsel,) for appellant.

Camp &amp Brooks, (Benton Hanchett, of counsel,) for appellee.

SHERWOOD, J.

The plaintiff in this case resides at East Saginaw. He is an engineer, about 53 years of age, and for many years has been in the employment of the defendant. On the evening of April 10, 1883, he was in charge of an engine running a passenger train from Wayne Junction to East Saginaw, on the defendant's road, and this had been his route during the previous eight years. In passing County Line station on that evening his engine collided with a flat car which had, within about half an hour previous, by some means left the side track at the station, and ran down onto the main line, and there stood, partly off the track, when the plaintiff's engine struck it. By the collision the locomotive was thrown off the track, and the plaintiff was permanently injured. The collision occurred between 9 and 10 o'clock in the evening. After the accident occurred, the plaintiff remained in the employment of the company, working part of the time after he recovered from the shock received in the collision. He regularly called for and received his monthly pay of $100 until October 1, 1885. The sums paid from the time he was hurt until he brought this suit amounted to about $3,000. On the twenty-seventh day of May, 1886, this suit was brought to recover for his injuries, basing his claim upon the ground that the car with which his engine collided was on the main track at the time through the negligence of the defendant or its servants. The declaration sets out the negligence claimed fully, and states the damages at $50,000. The defendant pleaded the general issue, with notice that, if plaintiff had any such claim, he settled and compromised it with defendant for the sum of $2,966.67 in full satisfaction thereof. The cause was tried at the last January term of the Saginaw circuit, and resulted in a verdict and judgment for the plaintiff for the sum of $22,000. The defendant brings error. Seventy exceptions are relied upon to reverse the judgment.

In the court below, before the jury, the plaintiff submitted that the defendant was liable for its claimed negligence in the premises for the following reasons "First. Because the defendant left this flat car, being without brakes, standing upon this side track. Second. Because there were no stop-blocks upon this side track to prevent cars left thereon from running out onto the main track. Third. Because there was no agent in charge of the station to see that the road was kept clear and free from obstructions. Fourth. It was negligence upon the part of the defendant to allow the car to get out upon the main track."

The defendant's contention upon the trial was that the company was guilty of no negligence in the premises; that its road, main line, and siding were properly constructed, and in good condition, and had long been used; that its side track was a safe and proper place for receiving and keeping cars when not disturbed by trespassers; that the engine and cars used by the defendant, and the flat car with which the collision occurred, were all sound and in good repair; that the duty which the plaintiff owed to the defendant was only that of master towards servant in his capacity of engineer and which had always been well discharged by the company, and that the defendant approached the station under too high a rate of speed.

In addition to the general verdict, the jury made special findings to the following questions: "(1) Do you find from the evidence in this case that the flat car with which plaintiff collided passed from the side track onto the main track by reason of motion imparted to it by the special freight train which backed onto the side track the night of the accident? Answer. Yes. (2) Do you find from the evidence in this case that the flat car mentioned in the preceding question passed from the side track to the main line track by reason of motion imparted to it by the wind? A. Yes. (3) Do you find from the evidence in this case that said flat car was intentionally put upon the main track by some person or persons unknown, for the purpose of causing a collision? A. No. (4) If you say no to the foregoing three questions, state what you find from the evidence in this case it was that set the flat car in motion, and caused it to run onto the main track? No answer. (5) Do you find from the evidence in this case that the plaintiff was duly observing defendant's rule requiring him to observe care in approaching stations [being rule 84 read in evidence] at the time he collided with the flat car? A. Yes."

The record contains all the evidence in the case, and counsel for the defendants rely upon all the exceptions taken. In the view I take of the case as presented by the learned counsel upon both sides, it will be unnecessary to consider all of them. It is unnecessary now to decide whether or not the case is a proper one for the jury upon its facts, if that question alone were to arise, as some were improperly brought into this case, and I think we may very properly omit the discussion of the exceptions which relate to the subject of damages.

The principles of law involved in the consideration of the questions raised are mainly those relating to the duty of the company towards the plaintiff in the capacity in which he was engaged. These have been so frequently under consideration by this court that a simple statement of them is all that will be attempted on this occasion. They required the company to use due care to provide materials, machinery, and other means by which the plaintiff was to perform the work for which he was employed, safe for his use, and to keep them in repair and in order, so as not unnecessarily to expose him to danger. And when the company had done this, the plaintiff assumed the risks and dangers incident to the company's business. Davis v. Railroad Co., 20 Mich. 105; Railway Co. v. Bayfield, 37 Mich. 205; Railroad Co. v. Dolan, 32 Mich. 513; Swoboda v. Ward, 40 Mich. 420; Hathaway v. Railroad Co., 51 Mich. 253, 16 N.W. 634; Huizega v. Lumber Co., 51 Mich. 272, 16 N.W. 643; Mining Co. v. Kitts, 42 Mich. 34, 3 N.W. 240; Railroad Co. v. Smithson, 45 Mich. 212, 7 N.W. 791; Railroad Co. v. Austin, 40 Mich. 247; Railroad Co. v. Gilbert, 46 Mich. 176, 9 N.W. 243; Smith v. Potter, 46 Mich. 258, 9 N.W. 273; Railroad Co. v. Gildersleeve, 33 Mich. 134; Railroad Co. v. Taft, 28 Mich. 289; James v. Mining Co., 55 Mich. 345, 21 N.W. 361; Hoar v. Merritt, 29 N.W. 16.

Included in the risks assumed by the plaintiff in this case were those originating from the negligent acts and omissions of his fellow servants in the employment of the company. Railroad Co. v. Taft, 28 Mich. 298; Smith v. Potter, 46 Mich. 258, 9 N.W. 273; Railroad Co. v. Leahey, 10 Mich. 199; Greenwald v. Railway Co., 49 Mich. 197, 13 N.W. 513; Railroad Co. v. Gildersleeve, 33 Mich. 133; Davis v. Railroad Co., 20 Mich. 105; Mining Co. v. Kitts, 42 Mich. 34, 3 N.W. 240.

While it was the duty of the company to use reasonable care in the proper construction of its road and side track, still, if the side track was not so constructed, and injury in consequence occurred to the plaintiff, when he had the same or equal means of knowledge with the defendant of such defect, and did not protest against the negligence now complained of, he ought not to recover. Railroad Co. v. Gildersleeve, 33 Mich. 133; Davis v. Railroad Co., 20 Mich. 105; Railroad Co. v. Dolan, 32 Mich. 510; Thomp.Neg. 1008, and cases cited; Railroad Co. v. Barber, 5 Ohio St. 541.

County Line station was at a highway crossing on the county line, and contained but a few buildings. It was a flag station only, and the train upon which the plaintiff was injured did not regularly stop at this station. The side track at this place was about 2,100 feet in length. The tracks ran mainly north and south. There are no depot buildings, or other accommodations for passengers, except a platform which stands on the east side of the main track, and the highway crossed the same a few feet north of the siding. The side track commenced a few feet south of the highway on the west side of the main line, and extended south the distance before stated. This siding was used principally for the purpose of holding trains while others passed, and cars to be loaded with wood. The company had a side track at County Line station as early as 1872. The track and grading, however, were changed in 1882, and the testimony of General Roadmaster George M. Brown is to the effect that the rebuilding of the track on the siding was done under his supervision, and that the track was laid a foot and a half below the main track, and that the side track in April, 1883, and prior thereto, was in such condition as to make the use of stop-blocks unnecessary, but that since that time, and prior to April, 1886, the side track has been raised, and the grade made nearly parallel with the main track, and in April, 1886, it was from two to eight inches higher than it was in April, 1883.

It is not claimed that the cars or engines furnished to the plaintiff for use were broken or defective or dangerous; nor that the track of the company was broken or out of repair but it is claimed that the side track was dangerous for the storage of cars without brakes upon them, or stop-blocks to hold...

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  • Hewitt v. Flint & P.M.R. Co.
    • United States
    • Supreme Court of Michigan
    • October 6, 1887
    ...67 Mich. 6134 N.W. 659HEWITTv.FLINT & P.M.R. CO.Supreme Court of MichiganOctober 6, Error to circuit court, Saginaw county; CHAUNCEY H. GAGE, Judge. Case by John A. Hewitt, appellee, against the Flint & Pere Marquette Railway Company, appellant, to recover $50,000 damages for personal injur......

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