Batterson v. Chicago & G.T. Ry. Co.

• Decision Date: 06 March 1884
• Citation: 53 Mich. 125,18 N.W. 584
• Parties: BATTERSON v. CHICAGO & G.T.R. CO.
• Court: Michigan Supreme Court

18 N.W. 584

53 Mich. 125

BATTERSON v. CHICAGO & G.T.R. CO.

Supreme Court of Michigan

March 6, 1884

A railroad company does not owe to its employes the duty of having its side tracks perfect, and the risk of imperfections there is one of the risks of the employment.

The company has a right to expect that every brakeman will use ordinary care in examining his footing and surroundings, and cannot be held liable for not guarding against an occurrence likely to happen in any place where the ground was uneven.

It is not true, as often imagined, that, as between employer and employe, all mishaps arising from defects of appliances or premises are taken out of the category of accidents.

Where railroads consolidate, the new company is subject to the duties and liabilities of its predecessor as if originally incurred by it.

Error to Ingham.

E.W Meddaugh and M.V. Montgomery, for plaintiff.

Conley Maybury & Lucking, for defendant and appellant.

CAMPBELL J.

This action was brought by a brakeman who had been employed by the Northwestern & Grand Trunk Railroad Company from November 1879, till January, 1880, on the line between Battle Creek and Flint, for an injury received while coupling cars at Hamilton station, on the morning of January 2, 1880. The present defendant is a company formed by consolidating that road with others in April, 1880. The same case was before us in 1883, and decided at the October term of that year, as reported in 49 Mich. 184; [S.C. 13 N.W. 508.] The accident happened about daybreak. The train on which plaintiff was employed stopped at Hamilton, going west from Flint, and the engine was backed from the west end of a side track to pick up a car standing on the side track. This side track was laid about 30 feet southward from the main track to be convenient to an elevator, and was not ballasted. At the place where the accident happened it crossed the upper part of a pond-hole, which was there eight or ten feet wide, and extended some distance southward at a width of several rods; the ties at that place being blocked up several inches. The car to be taken stood with its end over this spot, and before the engine backed very near, plaintiff went to the place and attempted to remove the link, so as to make the coupling with the link in the moving car. In doing so he stood on the ties, and at that time he saw they were not ballasted, but claims he made no particular examination, but stood on the ties because he thought it safer. Finding the link too fast to remove, he went back to the approaching car attached to the engine, which was about 25 feet off and moving slowly, and took out the link from that, and walked back, carrying that link in his left hand and his lantern on his left arm. As the cars came near together he put his left hand on the corner of the stationary car and leaned over, when his fingers slipped off and he fell forward. His foot went into the hole between the ties, and his right hand caught the link, which was hit by the draw-head of the approaching car and drawn into the opening so as to crush the hand. At this time the ground was lightly frozen, and the water in the pond skimmed over with ice, with a thin coating of snow which had recently fallen.

The negligence which plaintiff complains of is the failure of the company to grade and ballast the side track at that place, so as to give a solid surface. The questions raised relate chiefly to the responsibility of the defendant the negligence of defendant's predecessor, and the duty of plaintiff to take proper care of himself. Upon the former hearing the case made by the proofs was held fatally variant from the declaration, which was regarded as charging the defendant with allowing a deep hole or rut to remain in its main track. It was our opinion that the duties relating to the main and side tracks were not the same, and that the difference was important. It was also held that such an open and obvious break in the surface of the ground...