56 N.W. 612 (Mich. 1893), Ragon v. Toledo, A.A. & N.M. Ry. Co.

Citation:56 N.W. 612, 97 Mich. 265
Opinion Judge:[97 Mich. 267] HOOKER, C.J. MONTGOMERY, J.
Party Name:RAGON v. TOLEDO, A. A. & N.M. RY. CO.
Attorney:[97 Mich. 266] Lyon & Hadsall, (Alex. F. Smith, of counsel,) for appellant. Watson & Chapman, for appellee.
Judge Panel:LONG and GRANT, JJ., concurred. McGRATH, J., concurred with MONTGOMERY, J.
Case Date:October 27, 1893
Court:Supreme Court of Michigan

Page 612

56 N.W. 612 (Mich. 1893)

97 Mich. 265

RAGON

v.

TOLEDO, A. A. & N.M. RY. CO.

Supreme Court of Michigan

October 27, 1893

Error to circuit court, Shiawassee county; William Newton, Judge.

Action by William Ragon against the Toledo, Ann Arbor & North Michigan Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

[97 Mich. 266] Lyon & Hadsall, (Alex. F. Smith, of counsel,) for appellant.

Watson & Chapman, for appellee.

[97 Mich. 267] HOOKER, C.J.

The plaintiff, a brakeman upon defendant's freight train, obtained judgment in the circuit court for an injury sustained by being run over by his train at Durand. Defendant's counsel contends that the judge should have directed a verdict against the plaintiff. It became necessary to leave a car upon the defendant's side track, and, after setting the switch, the plaintiff signaled to the engineer to back up, which he did, and plaintiff stepped between the car and the tender to uncouple the car. Having some difficulty, and being near the switch, he stepped out, to avoid the danger of walking over the switch bars, entering again after the car had passed them. No one saw the accident, but plaintiff states that he stepped into an unfilled space between the ties, and before he could extricate his foot it was caught by the brake beam of the tender, at the heel, and his toe dragged along the track. At this time he was inside the main track, and, realizing that he was near the frog, he threw himself over the rail, sacrificing his foot, rather than his life. At the outset a question of variance arises. The first count of the declaration states that defendant permitted a deep hole or rut to exist in its tracks, into which plaintiff stepped. A second count states it as existing in the side track, between the ties, which space it was defendant's duty to fill with dirt. The alleged variance consists in the failure of the plaintiff to prove the existence of any definite deep hole in the track. He testifies that he did not see the hole, but that he stepped in one, and was [97 Mich. 268] caught. He attempts no description of its size or depth, further than to say that he thought he went down about eight inches, and claims to know there was one only by reason of having stepped into it. He does not fix the exact location of it. Other testimony on the part of the plaintiff tended to show that the spaces between the ties had not been filled with dirt in the vicinity of the place of the accident, and between the place where the foot was cut off and the switch. This testimony fairly tended to prove that the spaces were filled at the middle of the ties, but at the rail the direct was from two to four inches below the top of the ties. From the very nature of railroads, the hole in the track mentioned in the declaration must have been between the ties, and evidence that for a space of 20 feet or more the ballast did not fill the spaces tended to prove the existence of a number of holes. Upon plaintiff's theory he stepped into but one hole, and the fact that he could not tell just where it was should not prevent recovery of his damages if he were lawfully entitled to them. If it turned out that there were several holes, that fact was not inconsistent with his claim, but tended to support the allegations that a hole existed, and that the spaces were not filled with dirt. It is not a case of proving a number of defects as a ground of inference that another distinct defect existed, but it was showing that several defects existed, one of which might have caused the injury.

This case went to the jury upon two possible theories, viz.: (1) That the plaintiff stepped into the hole, about eight inches deep, in defendant's track, which track was otherwise smooth and in good condition; (2) that the

Page 613

road bed was in bad condition for want of ballast, leaving places between the ties, into one of which plaintiff stepped, and that his foot was caught by reason of that fact. [97 Mich. 269] The first count was supported only by the testimony of the plaintiff, if it can be said to have been supported by proof. He testified that he stepped into a hole about eight inches deep. He said that, so far as he knew, the track was otherwise smooth and in good repair, and that he never saw the hole; that he only knew of its existence by stepping into it. No other evidence in the case shows the existence of any isolated or unusual...

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