7 N.W. 791 (Mich. 1881), Michigan Cent. R. Co. v. Smithson

Citation:7 N.W. 791, 45 Mich. 212
Opinion Judge:[45 Mich. 214] COOLEY, J.
Attorney:Henry Russel and G.V.N. Lothrop, for plaintiff in error. [45 Mich. 213] Griffin & Dickinson, for defendant in error.
Case Date:January 12, 1881
Court:Supreme Court of Michigan

Page 791

7 N.W. 791 (Mich. 1881)

45 Mich. 212




Supreme Court of Michigan

January 12, 1881

Defendant in error was a switchman in the employ of plaintiff in error, a railway corporation, over whose line of road cars of other lines, and of different construction, were frequently passing. A car so passing over the road, and belonging to another company, and having what was known as double dead-woods, was attempted to be coupled by defendant in error, whose hand, while he was so engaged, was caught and crushed. There was some evidence to show that double dead-woods were more dangerous than others, and that the danger might be reduced somewhat by the use of what was known as a stick. Defendant, from his position, was called upon to couple all sorts of cars. Held, that the question of negligence on the part of plaintiff in error was erroneously submitted to the jury.

Error to superior court of Detroit.

Henry Russel and G.V.N. Lothrop, for plaintiff in error.

[45 Mich. 213] Griffin & Dickinson, for defendant in error.

[45 Mich. 214] COOLEY, J.

Smithson sued the railroad company to recover damages for injuries alleged to have been caused by the [45 Mich. 215] company's negligence. He was a switchman in the employ of the company, and had been for about a month, when in an attempt to couple two freight cars his hand was caught between them and he was seriously hurt. He had been a switchman and brakeman for several years on the Grand Trunk Railway of Canada before entering the service of defendant. The cars he was coupling were cars belonging to and received from the New York, Lake Erie & Western Railway. At the ends were what are known among railroad men as "double dead-woods." A car of this construction has a horizontal timber at the end with projecting blocks bolted to each end of the timber, and the draw-bar for coupling extends but little beyond the faces of these blocks. In coupling the blocks come together and receive the blow of the cars. The coupling-pin is dropped between the blocks from above. Distinguished from the car with double dead-woods is that known as the single dead-wood, which dispenses with the projecting

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blocks, and leaves the draw-bar to receive the concussion when the cars are coupled. The cars of the defendant are single dead-woods, and so perhaps are four-fifths of all the cars which pass over its road. Several long lines, however, use the double dead-woods exclusively, and among these are the Pennsylvania Railroad Company's lines, those of the Delaware, Lackawanna & Western, and the Pittsburgh, Fort Wayne & Chicago. The New York, Lake Erie & Western Railroad Company has adopted the double dead-woods, but have some cars not of that style.

The gravamen of the plaintiff's complaint is that he was employed by the defendant in making up trains and coupling cars; that the existence and use of double dead-woods was unusual and in the highest degree dangerous to the life and limb of persons so employed as the defendant well knew, and that on the ninth day of March, 1879, the plaintiff, in and about the ordinary course of his said employment, "and when the plaintiff did use due care, was coupling certain cars, which said cars by the carelessness, negligence and default of the defendant, had been introduced and used upon the said [45 Mich. 216] railroad by the defendant, then having and bearing such unusual attachments called dead-woods, so as aforesaid placed and being, which the defendant well knew, but of which the plaintiff was wholly ignorant, without using reasonable and ordinary means and appliances for the protection of its employes, and especially the plaintiff, in coupling the same, was caught between the dead-woods so placed and being upon said cars, and being so held the said cars were driven and run against the plaintiff, and a portion of his hand was destroyed," etc.

The coupling of cars on the road of defendant appears to be done with the hand alone, without the assistance of any mechanical implement. There is some evidence that what is called a "stick" is sometimes made use of in coupling the double deadwoods, but the evidence is very slight, and scarcely intelligible, and it does not appear that the use of such an implement is general anywhere. The plaintiff gave evidence that tended to show that the coupling of the double dead-woods belonging to the New York, Lake Erie & Western Railway Company is always dangerous; one witness going so far as to testify that the man attempting it is more apt to be caught than in escape with safety. It was also shown that the constructon of these cars differed from double dead-woods in general; the blocks being higher and nearer together; and there was considerable evidence that this difference increased the danger. On the other hand it was shown that the New York, Lake Erie & Western Railway Company deliberately adopted this particular form "as the result of some 20 years' experience," and that many of the cars of that company are passing over the road of defendant constantly. Four hundred and seventy-six passed over in the first 10 days of defendant's service, but how many of these were double dead-woods, or how many it was necessary to couple, did not appear. The case was submitted to a jury who returned a verdict for the plaintiff, assessing his damages at $5,000. It is [45 Mich. 217] claimed in this court that there was nothing to submit to the jury.

Nobody disputes that when a person enters the service of a railroad company he assumes the risks and dangers incident thereto, and cannot demand compensation from his employer for any accidental injury. In Davis v. Detroit, etc., R. Co. 20 Mich. 105; Quincy Mining Co. v. Kitts, 42 Mich. 34, and other cases, we have said all that can be needful on the subject, and shall not repeat it here. Nobody disputes either that the employer is charged with the duty of care to those in his service, and must not subject them to risks by his own negligence. This is amply explained in ...

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