Benage v. Lake Shore & M.S. Ry. Co.
| Decision Date | 25 September 1894 |
| Citation | 102 Mich. 72,60 N.W. 286 |
| Parties | BENAGE v. LAKE SHORE & M. S. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, St. Joseph county; Noah P. Loveridge Judge.
Action by James A. Benage, administrator, etc., of Jacob Gee against the Lake Shore & Michigan Southern Railway Company to recover damages for personal injuries causing death. Judgment was rendered for defendant, and plaintiff brings error. Affirmed.
R. R. Pealer, Geo. E. Miller, and Bishop E. Andrews, for appellant.
C. E. Weaver (Geo. C. Greene and O. G. Getzen Danner, of counsel), for appellees.
Plaintiff's intestate, Jacob Gee, was a brakeman in the employ of the defendant company, which owned and operated a side track crossing the Kalamazoo river in the village of Otsego. This side track was placed across the river by the company for the purpose of running its cars from the main line to the Bardeen paper mill, to transfer from the mill its manufactured product. It was built upon a trestle, and in a circular form, until it reached the manufacturing plant. Across the river from the main line the Bardeen Paper Company had erected gates across the track, just at the edge of the river. One of these gates was hung on hinges so that, when unfastened, it would, of itself, swing across the track. The gates were so placed there with the consent of the defendant company. They were fastened to upright posts, which were fastened to bed-pieces extending partly under the track; and, as claimed by plaintiff, the posts and gates were so connected to the railroad tracks or the trestle that, by the jar of a train or engine crossing, the upper or right-hand gate would become unfastened, and swing across the track. On July 18, 1892, an engine and tender, connected, were to be taken across from the main track to haul out some cars upon the other side. The engine was in charge of the engineer and fireman. Plaintiff's intestate was a brakeman at work under the direction of the conductor of the train. As the engine and tender were about to be started across this trestle, backing up, the conductor of the train and Gee stepped upon the brake beam, one each side of the drawbar, to ride over, Gee intending to couple the engine to the cars which were to be hauled out. As the tender neared these gates, the one upon the side where Gee was riding, being unfastened, stood partly open, so that as the rear end of the tender reached it the end of the gate came in contact with the rear end of the tender, and, sliding along, crushed Gee against the drawbar, and injured him so severely that he died from such injuries on the same day. This action is brought to recover damages for negligently causing Gee's death. On the trial the court directed a verdict in favor of the defendant company, on the ground that Gee was guilty of contributory negligence, in riding on this brake beam.
The case has been very fully and ably argued in this court. Counsel for plaintiff contends that Mr. Gee's position on the brake beam, though dangerous, yet was not the proximate cause of his injury and death, and therefore, if he came to his death through the negligence of the company, it cannot escape liability by saying the plaintiff was in a dangerous place; that the mere fact that he was in a position where he might be injured in some other way would not excuse the company from the consequences of its own neglect. It is contended that at least it was a question for the jury. It appeared from the testimony given on the trial that other employ�s of the defendant company had been for some considerable time accustomed to ride in this way on this and other engines, and it is therefore claimed that Gee could not, as matter of law, be said to have been guilty of negligence in doing what was customary to be done there. From a careful examination of the authorities, we are led to the conclusion that the court below was not in error under the circumstances shown in this record, in the direction given to the jury. The engine and tender were similar to those in the general business of the company over the line of its road. It was not a yard engine. It had no footboard, like those at the rear end of tenders, upon which so often employ�s ride back and forth to attend switches, or to couple or uncouple cars. The brake beam was about 7 inches in width at the center, and continued for 12 inches each way, when it tapered down to 3 1/2 inches, and was only 5 feet 8 inches long. It was 29 inches from each end of this beam to the outside of the tender. The men standing on this beam had no place to hold on, except the projection of the drawbar against which they leaned. In this position they could not see the engineer or fireman, or be seen by them. The engine was running from five to eight miles an hour, according to the testimony. All the witnesses, without exception, pronounced it an unsafe place to ride. The rules of the company, with...
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