Harrison v. Detroit, L. & N.R. Co.

• Citation: 44 N.W. 1034,79 Mich. 409
• Parties: HARRISON v. DETROIT, L. & N. R. CO.
• Decision Date: 20 February 1890
• Court: Supreme Court of Michigan

44 N.W. 1034

79 Mich. 409

HARRISON v. DETROIT, L. & N. R. CO.

Supreme Court of Michigan

February 20, 1890

Error to circuit court, Kent county; WILLIAM E. GROVE, Judge.

Action by John Harrison against the Detroit, Lansing & Northern Railroad Company. From a judgment for plaintiff, defendant brings error.

C. B. Lothrop and Smith &amp Stevens, for appellant.

John A. Fairfield, (Isaac M. Turner and Birney Hoyt, of counsel,) for appellee.

LONG J.

This action is brought to recover for personal injuries sustained by the plaintiff through the claimed negligence of the servants of the defendant. On the trial the plaintiff had verdict and judgment for $9,000. The plaintiff had been in the employ of the defendant company for about eight years though for some portion of that time he had been laid off, by direction of those in charge of the works of the company. During that time, his employment had been confined to the work as a section foreman and hand under a section boss. At the time of the injuries complained of one George Light was the defendant's assistant road-master of the western division, having charge of its tracks from Stanton to Big Rapids, and from Howard City to Saginaw,-a line of about 150 miles of defendant's road; Mr. Doyle being the general road-master. On the morning of November 11, 1887, Light having been ordered by Doyle, the general road-master, to go to Cedar Lake, east of Edmore, to move some telegraph poles, ordered two section foremen,-Cushton, to whose gang plaintiff belonged, and Horton,-to take their gangs there for that purpose. Light went with them from Edmore on a hand-car, and assumed charge and direction of the work. The poles were partially loaded on a flat-car standing on a side track, and in loading were piled much higher on the side of the car furthest from the pile of poles than on the other; the car being blocked up to prevent its tipping. A freight train came along on the main track from towards Edmore going eastward, when Light ordered the engine of this train to be detached for the purpose of moving the car upon which the poles were being placed to another part of the yard. The engine, on being detached, proceeded eastward beyond the switch; and, the switch being then turned, it was then backed in upon the switch towards the car upon which the plaintiff was at work,-plaintiff, with two other men, being on the east end of the car, with his back towards the approaching engine, and standing on the poles about five feet above the deck of the car. Plaintiff claims that the engine was then about 60 feet from him, when he desisted from his work, and turned his head around, looked towards the approaching engine, and said to Light, who plaintiff claims was standing near the main track, and about 10 feet east of the car on which plaintiff was at work; "George, this here car will about do. She is about level,"-and at the same time plaintiff grabbed hold of the poles to protect himself if the engine came back to the car, when Light replied: "Roll another pole over. What the hell are you looking at? You have lots of time. Roll them over! Roll them over!" While plaintiff and his witnesses place Light at this time some 8 or 10 feet east of the car, some other evidence puts him near the middle of it. When this order was given by Light, plaintiff resumed his work; and he testifies that he went to work because Light told him to; that Light was the boss of the gang that day. Plaintiff says that when he turned around to see, and saw the engine coming, he thought she was coming to make the switch to move the cars, and then he grabbed hold; but that when Light told him to go to work, he did the same, as the rest went to work to roll more poles over to level the car up, and did not think they were going to let the engine come back on the car until they got through. On being asked if he relied upon what Light said in that respect, he stated: "I had to do as he told me, or may be I would get the red ticket. I thought he would not let the engine come back while we were at work on it." While the plaintiff was so at work the engine was backed down against the car. Plaintiff was thrown off, and seriously, and, as it is claimed, permanently, injured, and in a condition which wholly prevents him from doing any kind of labor. It is claimed that Light took no steps to warn the plaintiff of the approach of the engine, or to prevent the engine from striking the car. Plaintiff also claims that the bell was not rung, and the jury so found; that he was listening for the bell, and, had he heard it, would have taken it as a signal of danger, and protected himself. Mr. Light admits ordering the engineer to take the car upon which plaintiff and the others were at work, and move it to another part of the yard, but denies that he gave the plaintiff the order claimed; that he merely directed the men to level the poles on the car, but gave no other order until after the accident; that, he stood with his back partly to the east, and at right angles to the east switch; that he saw the engine pass over the switch to the east and stop, and did not see it again until it struck the car. The defendant also contended that the bell was being rung while the engine was backing down.

At the close of the testimony, counsel for defendant requested the court to instruct the jury: "(1) If you find that the injury to the plaintiff was caused by the negligence of Mr. Light, the assistant road-master, the plaintiff cannot recover, for the reason that the two were fellow-servants, and the master is not liable for an injury to one caused by the negligence of another." "(3) If you find that the plaintiff was ordered by Mr. Light to continue work while the engine was approaching the flat-car upon which the plaintiff was at work, but at the same time the bell upon the engine was ringing and the engine was backing up, then the plaintiff was guilty of contributory negligence in failing to heed the warning of the bell; and your verdict must be for the defendant. (4) If you find that such order was given by Mr. Light, but that afterwards the bell upon the engine was rung as a warning of the approach of the engine to the flat-car, then the plaintiff was guilty of contributory negligence, and cannot recover in this action. (5) If you find from the evidence that Mr. Light gave the order to the plaintiff to continue work, as the engine was backing up, but that the fact of its near approach was not known to Mr. Light when he gave the order, and was known to the plaintiff, then the plaintiff was guilty of contributory negligence in failing to notify Mr. Light of its approach, and to secure himself; and your verdict must be for the defendant. (6) If you find that Light gave the order as claimed by plaintiff, but that at the time of giving it the danger from the engine was not imminent, then the giving of the order was not the proximate cause of the injury, but the proximate cause was his failure subsequently to warn the plaintiff; and for such neglect the defendant is not liable, and the plaintiff cannot recover. (7) If it was apparent to plaintiff, when he looked around to the engine, that the danger of the engine running into the flat-car was then impending and imminent, then the plaintiff was guilty of negligence in obeying Light's order, and cannot recover. (8) The evidence shows that, if the bell had been ringing as the engine backed down, the plaintiff would have been warned, and would not have been injured; and I charge you that the omission to ring the bell was the proximate cause of the injury, and the plaintiff cannot recover. (9) Under all the evidence in the case, the defendant is not liable for the injury to the plaintiff; and your verdict must be, no cause of action."

The court refused to give these instructions, but instructed the jury that the negligence of Mr. Light would be the negligence of the company, and for which a recovery might be had. Defendant's counsel submitted five special questions for a finding of the jury thereon, as follows: "(1) If the bell had been rung as the engine backed down on the car, would such ringing have given warning to the plaintiff of the approach of the engine? (2) Was the bell upon the engine ringing when the engine was backing up on the side track to the car on which the plaintiff was at work? (3) Would the accident have happened if the bell on the engine had been ringing as the engine backed up against the flat-car? (4) Was the accident caused by the failure of the plaintiff to heed the warning of the bell-ringing? (5) At the time when the plaintiff turned and saw the engine coming and tried to make himself safe, as he testifies, was the danger imminent?" The court submitted the second, fourth, and fifth of these questions to the jury, and refused the others. To the second, the jury answered, "No;" to the fourth, they said it was disposed of by their answer to the second; and to the fifth, answered "No."

The principal questions argued here are grouped by counsel for defendant under the four following heads: "(1) If Light's negligence was the cause of the injury, was Light, in doing this work, the fellow-servant of plaintiff? (2) If he was not, then was his negligence the proximate cause of the accident? Or was such proximate cause the neglect of the engineer or fireman to ring the engine bell? (3) Whether appellant was entitled to have the two special questions one and three submitted. (4) Was the special verdict inconsistent with the general verdict?"

No exceptions were taken to the admission or exclusion of evidence during the trial of the cause, and no complaint is made of the charge as given. The principal contention is that the plaintiff and Light were fellow-servants, and therefore the defendant company could...