Adams v. Iron Cliffs Co.

• Decision Date: 28 December 1889
• Citation: 44 N.W. 270,78 Mich. 271
• Court: Michigan Supreme Court
• Parties: ADAMS et al. v. IRON CLIFFS Co.

44 N.W. 270

78 Mich. 271

ADAMS et al. v. IRON CLIFFS Co.

Supreme Court of Michigan

December 28, 1889

Error to circuit court, Marquette county; C. B. GRANT, Judge.

Action by John Q. Adams and Dwight West, administrators of the estate of James A. Root, deceased, against the Iron Cliffs Company, for the negligent killing of plaintiffs' intestate. The court directed a verdict for defendant, and entered judgment thereon. Plaintiffs appeal.

Hayden & Young, for appellants.

W P. Healy, (Arch. B. Eldredge, of counsel,) for appellee.

MORSE J.

This action is brought for the death of James A. Root, on March 8 1886, by the alleged negligence of defendant. The court directed a verdict for the defendant upon several grounds: First. The declaration alleged that the accident occurred on a public highway, and that the deceased was therefore entitled to all the rights and privileges of a traveler on a public highway. The court found that there was no testimony tending to show that the road in question was a public highway of sufficient force to be submitted to the jury, and held that this was the private road of the defendant, and that the public had acquired no rights in it by user or otherwise. Second. The court found that the plaintiff's intestate must have been guilty of contributory negligence. Third. That none of the allegations in the declaration of plaintiffs as to defendant's negligence had any foundation in fact, except the averment that the engineer was negligent in starting his train without warning, and that as to this negligence of the engineer, such engineer was a fellow-servant of the deceased and there being nothing in the case to show that defendant did not use due diligence in the employment of competent men, and no evidence that the engineer or brakeman was not competent, the plaintiffs could not recover for any negligence on the part of said engineer.

In order to fully understand the bearing and correctness of these rulings it will be necessary to state some of the surroundings and circumstances of the accident or killing of Mr. Root, as shown upon the trial by the plaintiffs. The defendant corporation owns and operates a blast furnace at Negaunee, on the line of the Chicago & Northwestern Railway. This furnace manufactures charcoal and pig-iron. This requires room for cord-wood, charcoal, flax, and iron ore, as well as a yard in which to store the pig-iron. The furnace consists of two stacks, and a tract of land called the "furnace bank" is occupied in carrying on the business. This location is unfenced. From the main line of the Northwestern Railway, there ran up to the furnace, at quite a steep grade, two parallel tracks, and these two tracks connected with other tracks that ran directly into the furnace. These tracks were built by the defendant, but belonged to the railway company, and were used by both the defendant and said company as occasion required, but principally by the defendant. Across these two parallel tracks, called "furnace tracks," there ran three different roads or wagon tracks, all of which connected with a single road or highway leading from the city of Negaunee to Palmer, a village built up in consequence of the Palmer mine and other mines near it. The lower road across the furnace track, and the one nearest the Northwestern Railway, was the road principally used in going from Negaunee to Palmer, or "Cascade," as that village was sometimes called, and was known as the "Cascade Road," and was the road used as a mail route between the two places. Upon the morning of the day of Mr. Root's death, and about 10 o'clock, defendant's engineer, John Beck, with one brakeman, John Wannamaki, had started from the furnace bank with an engine, backing from five to seven empty boxcars slowly down the grade towards the main line of the Northwestern Railway. As these cars reached the crossing, the brakeman, who was on top of them, saw some cars loaded with pig-iron, which were standing on the other furnace track, get away from the control of the persons in charge of them, and start down the grade. He immediately set two brakes on what he called the front car, the one furthest from the engine, of his train, and ran down to help stop the cars on the other track. The cars on the first track were stopped over the crossing nearest the railway, and called by the plaintiffs the "Cascade Road." He testifies that half of the forward car was over the crossing. The next crossing was also blocked by cars, but the upper crossing was open. This was seldom used, however. The testimony is not very definite as to how long these cars remained upon the crossing, the time being somewhere between 5 and 15 minutes. It is not shown how Mr. Root got under the cars, as no one was present when it happened. The last seen of him was a few minutes before, when he was going along the lower road or highway towards the city of Negaunee. When the brakeman stopped his cars, and before going to the help of the others, he ran back, and told Beck, the engineer, to stop there until he got back. He then ran down to the runaway cars. He jumped on top of them, and set the brakes and stopped them. After they were stopped, he started to go back to his own cars. He did not signal the engineer to start. While going back he heard a yell, and saw the section-boss, Calloghan, running towards the brakeman's cars, which were moving down the grade. There was no bell on the engine of this train, but it was provided with a whistle, which plaintiffs claim was not blown before the starting. Mr. Root was found caught by his right hip under the brake beams of the rear wheels of the foremost car, as they were backing. He was lying on his back, with his face turned upward, and his head and body were outside the track. He was dragged in this way down the track, until his body struck the guard-rail of the frog. The train was then stopped, and Mr. Root taken out. He died almost instantly after being released. How deceased was caught, and when, cannot be definitely ascertained, as when first seen the cars were moving, with his body caught and held under the cars, as above stated. There were some blood spots on the snow along-side the rail, beginning at a place a dozen feet or so from the traveled part of the road, over the crossing; and the marks of his body dragging from this point were seen down to the frog, about 300 feet from the crossing. Along the south side of this furnace track, and on the side where Mr. Root evidently attempted to cross, was a bank of snow about two feet high, and between this bank of snow and the cars there was not room enough for a man to walk. It was the theory of the plaintiffs upon the trial that Root, seeing the train remain so long, had undertaken to go around the car, probably supporting himself by placing his hands upon the side of the car while he walked on the bank of snow along-side, and the sudden starting of the cars had thrown him down and under the wheels.

The court charged the jury as follows: "Now what evidence have you as to the manner of killing? We find the cars across the crossing. We find Mr. Root either under the rear car wheels of the first or the second car. The height of the cars above the track was somewhere from two to two and a half feet. The track was of the usual width, we assume,-in the neighborhood of four or five feet wide. The deceased would have to go some way down the track in order to get across. Now it is clear that there are three ways in which the deceased might have got under those cars. He might have attempted to have gone under there, under the assumption that the cars would stand there until he had time; he might have undertaken to have gone around, and the cars started, and he was thrown down and thrown under; or he might have reached the end of the car, and been knocked down and run over when he reached the end. In either case, gentlemen, what was his duty? The plaintiffs claim that they would go to you, as I understand it, upon the theory that the deceased had gone around the car. Assume that to be the case, then you have heard the testimony in regard to the speed with which this train went down. I take it that in that case,-that train and engine attached standing upon the track,-it is notice to every one that that train may start at any time. It is in law, in my judgment, clearly contributory negligence for persons to go along by the side of that car, where, if it moves, they are in danger of being thrown under, or to go around the end of the car, and be so near that when the train started, as it did here, they may be knocked down and caught under the cars. I take it, gentlemen, it is the law, a man may not go so near a train of cars as that going around, under circumstances of this case, and still have a jury say that they will infer that he was in the exercise of due care and caution. It seems to me clear that it cannot be the law. If he attempted to get underneath the cars, and go across, then that was clearly contributory negligence. So I must charge you, gentlemen, that the plaintiffs in this case have failed to show you evidence from which you would have the right to infer that the deceased was in the exercise of proper care and caution. It would not do to leave juries to guess; there must be evidence from which they may find the substantial facts to entitle a party to recover." This brings up squarely the question of contributory negligence in a case where there is no eye-witness of the accident. In such a case, while the rule is not relaxed that the plaintiff must show that his intestate was without fault, yet the presumption, in the absence of any evidence to the contrary, obtains that the deceased used ordinary care and caution in atempting the crossing, and such presumption is...