Balhoff v. Michigan Cent. R. Co.
| Decision Date | 01 October 1895 |
| Citation | 106 Mich. 606,65 N.W. 592 |
| Court | Michigan Supreme Court |
| Parties | BALHOFF v. MICHIGAN CENT. R. CO. |
Error to circuit court, Bay county; George S. Hosmer, Judge.
Action by Margaret Balhoff against Michigan Central Railroad Company to recover damages for causing the death of her intestate. Plaintiff had judgment, and defendant brings error. Affirmed.
E. A. Cooley (Ashley Pond and Henry Russel, of counsel), for appellant.
McDonnell & Hall, for appellee.
The plaintiff's intestate, her husband, was killed upon defendant's railroad, under the following circumstances He was acting as a brakeman upon a freight train, a portion of which was being backed upon a siding for the purpose of making a coupling to some cars standing thereon, after having been coupled to two flat cars loaded with logs. After making the coupling to the flat cars, the deceased sat upon one of them, between two piles of logs, and was killed by the train's leaving the track and striking another car, which caused the logs to shift and crush him. The intestate had been engaged as brakeman upon the way freight for two months or more, and was familiar with the road. The accompanying sketch will serve to illustrate the situation:
(Image Omitted)
At A and B, where the car left the track, was a depression, towards which the water ran from both north and south. There is nothing to indicate that the depression was great, and it is claimed by the defendant to have been so slight as to require a level to detect it. Towards the east side of the yard was an open ditch, parallel with the tracks between sidings 3 and 4, and there was another between the main track and the side track on the west side of the grounds. There was a sluice, consisting of a box eight inches in diameter, which was constructed to take the water which came down upon and between the tracks to the ditch; said sluice being lower than, and running under, side track NO. 4. The sluice was constructed in the fall of 1892 by the sectionmen. On January 29, 1893, the snow and ice melted, and water accumulated in the low spot mentioned, covering the rails. It did not run off, because the box drain was frozen. The following night was cold, and the water froze, and a light snow fell, covering the ice. At 2 p. m. on January 30th the accident occurred, the train being thrown from the track by reason of the ice. There was testimony that the sectionmen did not know that the box was frozen, or the track covered with ice, not having reached that place in the due course of their daily labor, and that when they reached it they found it (i. e. the box) frozen solid, and it remained so all winter. It is claimed by the counsel for the plaintiff that the defendant was negligent, in that it did not fill up the depression, and lift the track up, so as to prevent the accumulation of water and ice, or notify its employ�s of the danger existing at the place, by personal notice, or by a notice posted at the place of danger. The circuit judge allowed the case to go to the jury, and the plaintiff recovered.
Several questions arise in the case, viz.: (1) Was the defendant negligent in constructing and maintaining its road with a depression, without informing its employ�s? (2) Did the intestate assume the risk, as incident to his employment? (3) Was the alleged negligence the proximate cause of the injury? (4) Was the freezing of the track due to the negligence of the sectionmen, and therefore that of a fellow servant? (5) Was the intestate guilty of contributory negligence?
1. The condition of the track: We may properly take judicial cognizance of the fact that it is impracticable to construct railroads upon a level. Indeed, most roads in this country are built upon a succession of inclines, in approximate conformity to the natural surface of the ground. We may also recognize the palpable necessity for rapid drainage of roadbeds, which is usually effected by raising the ties and track above the general surface, and the propriety of ballasting the track in such a manner as to prevent water from running across it, between the ties. In a yard where there are two or more tracks it follows, of necessity, that water may accumulate between the tracks, and that whether provision should be made for its removal may depend upon the quantity of water likely to accumulate, and the facility with which it naturally escapes. Again, we know that during a thaw snow drops from barriers, and that water finding its way into drains may freeze there from such cause, and this may happen to a drain that is amply large for ordinary occasions. We cannot, however, say, as a legal proposition, when a drain is necessary, or whether it is sufficient, or to what extent the railroad company should foresee the danger of water rising above the tracks and freezing, and take measures to prevent it. The rule is that the company must provide a reasonably safe track,-one which, measured by the standard of good railroading, as actually conducted, can be said to be reasonably safe. If such standard would require the danger of ice freezing over the track to be foreseen, then it was the duty of the company to foresee it. If good railroading, as above interpreted, requires provisions to be made to prevent such freezing, to avoid accident, then it would be negligence to omit such provision; and the same rule must furnish the test of the adequacy of provisions made. These are necessarily questions of fact, and cannot be determined by the court, unless the evidence is conclusive and uncontradicted, one way or the other, which is not the case here. Therefore we must say that whether the defendant in this case furnished a reasonably safe place was a question for the jury.
2. Was the accident a risk incident to the employment? We have so often held that one who is employed to work upon a railroad assumes the risks of obvious defects, that it is hardly necessary to cite authorities upon the subject. The master has a right to expect the servant to be alert, and make use of his opportunities to learn the dangers of his employment; and, if ignorance of a danger is inexcusable, the employ� cannot recover. And there are cases where the testimony is conclusive, and the court may say so. But the fact is not undisputed here. The intestate's actual knowledge can neither be proved nor disproved conclusively, as he is dead. All that is left is to show the surroundings, and from them we cannot say that he knew, or ought to have known, that there was a low place in the track at that point. He may have known it. We might perhaps say that he probably did know it, but it would still be for the jury to determine the fact.
3. Proximate cause: It is argued that the plaintiff should not recover, because the freezing of the box was the proximate cause of the accident. No authorities are cited for such an application of the doctrine of proximate cause. The ice upon the track caused the accident, and that was caused by the thawing and freezing weather, the presence of water, the depression in the track, the inadequate drainage under the existing conditions. All contributed to make the place unsafe; and, if the defendant can be fairly held to have been negligent in permitting this condition of the track, there may properly be a recover. We cannot sustain this contention.
4. Negligence of the sectionmen: There is little doubt that it was within the employment of the sectionmen to keep this track in a condition for travel. Doubtless they were expected to remove this ice from the track. In fact they did it later. It may be that it can be reasonably said that the drain was adequate for ordinary purposes, and that it was proper for the company to rely upon its sectionmen to remove ice, in such emergencies as this. But, if so, the sectionmen were employed to maintain a reasonably safe track. It is urged that sectionmen and brakemen are fellow servants, and that for that reason there could be no recovery. The weight of authority is against this claim. The master owes the duty of furnishing a reasonably safe track, and this is a responsibility from which the company is not relieved by confiding the duty of construction or repairs to competent servants. Such are the master's agents, and their negligence is his negligence. They may be fellow servants of others engaged in making the repairs, but not of those for whose use and benefit they are made. Nor does the fact that the persons making repairs may be employed in fellow service with the injured person, in other work, relieve the master. The duty is one that the master cannot escape by delegating it. For authorities upon this branch of the case, see cases cited in McKinney, Fel. Serv. � 29, and note; Benzing v Steinway, 101 N.Y. 547, 5 N.E. 449; Herbert v. Railway Co., 3 Dak. 38, 13 N.W. 349; Sanborn v. Trading Co., 70 Cal. 261, 11 P. 710; Capper v. Railway Co., 103 Ind. 305, 2 N.E. 749; Fort v. Railroad Co., 11 Am. Law Reg. (N. S.) 101, Fed. Cas. No. 4,952; Krueger v. Railway Co., 111 Ind. 51, 11 N.E. 957. The duty to furnish a safe place to work is asserted in the cases of Swoboda v. Ward, 40 Mich. 423, and Smith v. Car Works, 60 Mich. 504, 27 N.W. 662. In Van Dusen v. Letellier (Mich.) 44 N.W. 572, Mr. Justice Morse reiterates the doctrine, and asserts that one to whom the duty is delegated represents the master, and is not the fellow servant of an operative using the place. This doctrine was again asserted in Brown v. Gilchrist, 80 Mich. 65, 45 N.W. 82, and, as applied to machinery, is laid down in Morton v. Railroad Co., 81 Mich. 423, 46 N.W. 111, by Mr. Justice Cahill, who asserts that delegation of the duty will not relieve the master from responsibility. The same is said in the case of Sadowski v....
To continue reading
Request your trial