Ashman v. Flint & P.M.R. Co.
| Decision Date | 11 March 1892 |
| Citation | 90 Mich. 567,51 N.W. 645 |
| Parties | ASHMAN v. FLINT & P. M. R. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Bay county; GEORGE P. COBB, Judge.
Action for personal injuries by George F. Ashman against the Flint & Pere Marquette Railroad Company. Plaintiff had judgment for $6,000, and defendant brings error. Affirmed.
In an action against a railroad for personal injuries sustained by one while uncoupling cars in defendant's yard, the declaration averred that plaintiff was employed as a switchman, and was discharging his duty as such when injured. The proofs disclosed that he was foreman of the switching crew, and had control of the engine. Held, that the variance was immaterial, as he was acting in his line of duty.
William L. Webber, for appellant.
Shepard & Lyon, for appellee.
Plaintiff was switching in the yard of defendant at East Saginaw Mich., June 5, 1890, and received injuries while attempting to uncouple cars. He brings this action for damages, alleging as negligence in the defendant the leaving of a frog unblocked, in which he caught his foot, thereby causing his injury. The defendant introduced no testimony, and plaintiff had verdict and judgment in the circuit court for Bay county. The plaintiff, according to his own testimony, was in charge of a pony engine, doing switching in the yard of the defendant, and had some men with him, assisting, who were under his control and orders, as was also the engineer. His business was making up and taking to pieces trains as they came in on the several divisions. The evening of the injury he was taking to pieces two trains, "to get the warehouse cars to take them down, so that they could unload them, and load the freight into other cars, to send out to their destination, whichever way they would run." He was hurt in the following manner: His left foot was the one caught, and his right side fell nearest to the track.
There are many assignments of error, not argued in the brief of defendant's counsel, with the statement in such brief, however, that they are not waived because not so argued. The counsel for plaintiff, in their brief, pass such assignments with the remark that they treat them as waived, as they consider that they are entitled, under the rules, to know by appellant's original brief what the position of such appellant is on each assignment upon which it relies for a reversal of the cause. None of these assignments were referred to upon the oral argument. We shall not, therefore, consider them. We are not disposed to go over some 35 assignments to ascertain whether the error alleged in each is well assigned or not, when the counsel for the appellant does not consider them of sufficient importance to point out to us their merit, if they have any. And under the rules we think the position of appellee's counsel is correct, that, if there is no argument in the appellant's brief in favor of the correctness of an assignment, counsel for appellee are not called upon to argue such assignment in their brief; and, although it may be stated that such assignment is not waived, if the same is not referred to upon the oral argument, where the counsel for appellee may have opportunity to meet such argument as might be made in its favor, this court will treat it as waived.
The first objection to the judgment is that the court below should have instructed the jury to bring in a verdict for defendant. This involves the question of the negligence of the defendant, as well as the contributory negligence of the plaintiff.
First. As to the negligence of the defendant. This was properly submitted to the jury. The statute expressly provides, under pecuniary penalty, that frogs like the one which caused the injury to plaintiff shall be adjusted, filled, or blocked, so as to prevent the feet of employes or other persons from being caught therein. See Laws 1883, p. 191. This law was passed upon the urgent demand of the people that such measures be taken to save the constantly recurring danger to life and limb from open frogs. By this legislation, an open frog in a railroad yard was recognized as a constant source of danger and of menace to human life; and to keep such frogs unfilled or unblocked was considered by this statute criminal negligence, to be punished by a penalty. To permit this frog by which plaintiff was injured to remain untilled or unblocked, with the knowledge of the defendant, or for such a length of time that knowledge or neglect of duty would be presumed under the law, would certainly be actionable negligence, and render the defendant liable to one who, without fault on his part, was injured thereby. And the duty of keeping these frogs filled or blocked in the yard of the defendant was one that it could not delegate to any of its employes, so as to relieve itself from the obligation that the law imposed upon it in this respect. With this statute in force, it was the duty of the defendant to keep its yard reasonably safe in this respect; and it is such a duty that the person or persons to whom it is intrusted, will stand in the place of the master, and their neglect will be its neglect. Johnson v. Spear, 76 Mich. 139, 42 N.W. 1092; Van Dusen v. Letellier, 78 Mich. 492, 44 N.W. 572; Harrison v. Railroad Co., 79 Mich. 409, 44 N.W. 1034; Brown v. Gilchrist, 80 Mich. 56, 45 N.W. 82; Morton v. Railroad Co., 81 Mich. 423, 46 N.W. 111; Sadowski v. Car Co., 84 Mich. 100, 47 N.W. 598; Roux v. Lumber Co., 85 Mich. 519, 48 N.W. 1092; Tangney v. J. B. Wilson Co., (Mich.) 49 N.W. 666. It is undisputed that this frog was open when the plaintiff was hurt; and it is also quite apparent that, if it had been filled or blocked, he would not have been injured. There was also evidence tending to show that other frogs in this same yard were unblocked, and that the yard-master was notified of their condition some time before this accident, and one open frog pointed out to him. Notice to him was notice to the defendant. Lyttle v. Railway Co., 84 Mich. 289, 47 N.W. 571. There was no showing that this particular frog had ever been blocked, and there was testimony tending to show that it had been open at least since the month of March before the accident. It is true that there was evidence from one witness tending to show that the defendant had men in its employ, whose duty it was to see that all the frogs were kept blocked or filled, and that plenty of proper material was furnished with which to do the work; but there was also from the same witness the statement that, although these men were employed to do it, they had not performed their duty. The duty of defendant did not end with the employment of these men to perform this work, and the furnishing of material to do it with. The duty devolved upon it also to see that they were not negligent in such work, since their negligence was its negligence. The question of defendant's negligence was clearly and fairly presented to the jury by the charge of the court.
Second. It is insisted that, as the plaintiff himself knew that there were unblocked frogs in the yard, although he did not know of this particular one where he was hurt, he was negligent, as a matter of law, in going between the cars while they were in motion to pull this pin. It is argued very strenuously and quite ingeniously that the courts are wrong in ever submitting to a jury the question of negligence; that the best definition of negligence ever given was that of the late Mr. Justice CAMPBELL, in Railroad Co. v. Coleman, 28 Mich. 449, to-wit: "Negligence is neither more nor less than a failure of duty;" and it is reasoned that this failure of duty is always a matter to be determined by the court; that the province of the jury is only to say what is the fact in a given case, and for the court to say what is the law. For instance, in the case before us it is claimed that it was a question for...
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