Morton v. Detroit, B.C. & A.R. Co.

• Citation: 81 Mich. 423,46 N.W. 111
• Parties: MORTON v. DETROIT, B. C. & A. R. Co.
• Decision Date: 13 June 1890
• Court: Supreme Court of Michigan

46 N.W. 111

81 Mich. 423

MORTON v. DETROIT, B. C. & A. R. Co.

Supreme Court of Michigan

June 13, 1890

Error to circuit court, Alcona county; WILLIAM H. SIMPSON, Judge.

A. M. Henry and J. C. Shields for appellant.

Frank Emerick and R. J. Kelley, for appellee.

CAHILL J.

This action was brought by plaintiffs, as administrator, to recover damages for the death of Thomas Harvey Morton, a former employe of the defendant. The plaintiff's intestate was on the 12th day of March, 1888, and for some time previous thereto, employed as a brakeman on one of the logging trains of defendant, running on a branch of its road engaged principally in the carrying of long timber. On that day he was thrown, in some manner, from the train on which he was working, run over, and killed. The plaintiff's case as set up in the declaration, was that the intestate, while so employed upon one of the trains of the defendant, was required to set the brakes upon some of the cars; that, to set the brakes, he was required to turn the wheel at the top of the vertical shaft of the brake until the brake-chain at the bottom of the shaft, and connecting with the brakes upon the car-wheels, draw and press the brakes upon the car-wheels with sufficient force to diminish or stop the speed of the train; that the brakeman's safety required that the brake-chain should be of sufficient size and strength of links, and that the links should be strongly and firmly welded together, so as to sustain a strong strain upon the chain; that it was the duty of the defendant to furnish and provide chains of sufficient size and strength, with the links so well and firmly welded together as to sustain the amount of strain necessary to enable the intestate to perform his duties as brakeman without danger of such chains breaking while the brakes were being set, and thereby throwing him from the car, under the wheels; that the defendant did not provide chains upon one of the cars of sufficient size or strength, or with the links properly welded together, so as to be safe, but provided a chain upon the brakes of one of the cars which was not of sufficient size or strength, and which did not have its links welded together so as to be safe to use for the purpose required; that on the 12th day of March, 1888, while the train on which intestate was employed was running between Mud Lake and Mud Lake Junction, the intestate was required to set the brake upon that car, and, while engaged in setting the brake, the chain, by reason of its not being of sufficient size or strength, and because some of the links had never been, and were not, welded together, broke and parted, and thus threw the intestate, without any fault or carelessness on his part, from the car, and under the wheels, which ran over him, and caused his death. The defendant pleaded the general issue. Upon the trial the defendant rested its case upon the testimony of the plaintiff, putting in no evidence, and requested the court to take the case from the jury, and direct a verdict for the defendant upon three grounds: First, that no negligence on the part of the defendant had been shown; second, that the negligence, if any, on the part of defendant, was that of one Bischam, the car-inspector, and that Bischam was a co-employe of deceased; third, that it appeared from the plaintiff's testimony that the plaintiff's intestate was guilty of contributory negligence. These requests were refused. The case was submitted to the jury, and a verdict rendered for plaintiff for $4,000. The defendant brings error.

We will consider these claims in their order. As the case went to the jury upon the plaintiff's testimony, the verdict must be sustained, if it appear that there was any legitimate evidence tending to establish the essential facts upon which his case depended. No one saw the deceased when he fell from the car. The manner and cause of his death are therefore to be inferred from other facts proven.

We take the following description of the cars and of the brake from the plaintiff's brief, the accuracy of which is not questioned: "The cars consist of mere trucks made up of two sets of wheels and axles set in a strong frame, with no covering whatever on top except cross-timbers, called 'bunks,' and upon which the logs rest. Two of these cars or trucks are connected by a long reach, and the two cars not so connected are connected to the next cars by the long timber itself. In the construction of the brakes, there is at the bottom or lower portion of the vertical shaft a spool into which the shaft fits. This spool is a round piece of iron about two inches in diameter, and three inches at the top, tapering. There are two brake-beams in between the two sets of wheels composing a truck, and to these are applied a bar or lever, which, when pulled, spreads the two brake-beams apart, and presses the shoe of the brake upon the wheels. The brake-chain is hooked into this lever or bar under the car, and then runs forward to the front frame of the truck, where it passes through a 'sheave,' and then turns a square angle to the spool at the outside of the car and bottom of the brake staff, where it passes through the spool, and is fastened by a bolt and nut. This sheave or pulley is made of two wheels or pulleys, through which the brake-chain runs."

The evidence touching the manner of intestate's death was given by the trainmen employed with him. Peter Rose testified that he was engaged in braking on the same train on the 12th of March. "The last time I saw Morton, he was sitting down to set his brake. That was at the top of Pritchard's hill. We were required to set brakes at that point, because it is down grade, and a pretty steep hill. They shut off steam, and the train comes down the hill, sometimes, pretty fast. It was at this point where I saw Morton setting his brake,-the last time I saw him alive. The men, in setting the brakes, would sit down on top of the loads of logs. We had to sit down to set the brakes. You take hold of the brake-staff, and turn the brake to set it. The staff has a cross-piece on it at the top, and the brakeman takes hold of the crosspiece, and sets it by turning it to the right. There is a dog at the bottom of the brake-shaft to hold it, and the brakeman has to put his foot down on the dog when he turns it. After I saw Morton, as I have stated, the next I noticed or learned about him was at Mud Lake Junction, about four miles further on, where we missed him. That same afternoon I was at the same point where he fell off, and saw blood and other spots on the road. This was near the point where I saw him set the brake, and towards the junction. I noticed that the chain on the car that Morton was working at was broken, and that the link was parted." "When a brakeman twists the chain so as to set the brake tightly, and there is a hard strain on the chain, if the chain should suddenly part, the effect would be to throw the brakeman off the load." The body of Morton was found near the top of Pritchard's Hill, and taken on the engine to Black River, where an inquest was held upon it. Upon this evidence as to the manner and cause of Morton's death, the court left it to the jury to say what caused it, instructing them that, if the death was caused in any other manner than by his being thrown from the car by the breaking of the brake-chain, the plaintiff could not recover. No question is made as to the propriety of this instruction.

The testimony of several witnesses called by the plaintiff showed that the brake-chain, when examined after the accident, showed that the link where the break occurred had never been properly welded, but had been left with what the witnesses called a "cold weld" or "cold shut." The surface of the iron where this cold weld was, was smooth, and showed no appearance of a break. That a piece of the link where it had separated and spread apart was broken off. That, in examining the chain, they discovered another link that had a similar weld; that is, just closed together tight, but not welded.

The witnesses also testified that this defect in the chain could be easily discovered by a close examination of the chain by any one. Daniel Campbell, who was employed by defendant in the supply department, testified that he had formerly been helping in the defendant's blacksmith shop at Black River. He further testified that he saw the broken chain, and described it to the jury. "It was a cold weld. I am not much of a blacksmith, but I can tell whether a weld is good or not. It was never welded together, because it was smooth. You could see it was turned over all right for a weld, but it never was welded, and the piece broke off. There was a black spot in it, where there was a defect. I could not tell exactly, but a link or two from one end of the chain was another cold weld. I could see that when I took it up in my hand, and looked at it." On cross-examination the witness testified that he was acquainted with Mr. Bischam who was in the employ of the railroad company; that he helped him a good deal. Bischam was the inspector of cars, and he fixed the cars. He inspected the cars that Morton was working on. It was his duty to look over the cars as they came in; to look at the chains and running material of the train; to see that everything was ready, and in proper shape, and, if he found that anything was wrong, he had to repair it; if he found a defective brake-chain, to remove it from the car. Mr. Bischam had been engaged in this duty for a good many years. It was the duty of Mr. Bischam to examine each train of cars that came in loaded before it went out again. "Question. You had no doubt, from looking at the chain, but what the links had been, before the accident, put down nicely and smoothly in place? A...