Britton v. Wabash Ry. Co., 102.

• Decision Date: 24 April 1925
• Docket Number: No. 102.,102.
• Citation: 230 Mich. 628,203 N.W. 484
• Parties: BRITTON v. WABASH RY. CO.
• Court: Michigan Supreme Court

230 Mich. 628

203 N.W. 484

BRITTON

v.WABASH RY. CO.

No. 102. ^*

Supreme Court of Michigan.

April 24, 1925.

Error to Circuit Court, Lenawee County; Burton L. Hart, Judge.

Action by Hugh L. Britton, an infant, by Barry Britton, his next friend, against the Wabash Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.

Wiest, Steere, and Clark, JJ., dissenting.

Baldwin & Alexander, of Adrian, for appellant.

B. D. Chandler, of Hudson, for appellee.

SHARPE, J.

There was a general strike of the employees of the defendant in the summer of 1922. Hugh L. Britton (hereinafter called the plaintiff), a young man 18 years of age and weighing about 135 pounds, sought and obtained employment in its machine shops at Montpelier, Ohio. He had theretofore lived on a farm 9 miles from a railroad station, and had ridden on trains but twice and for short distances. He informed the superintendent who hired him that he had had no experience in such work. His wages were fixed at 70 cents an hour for the first 8 hours of each day and $1.05 per hour for overtime. He began work the next day (July 8th), and worked until the night of August 3d. The shops were on the south side of the railroad, almost directly across from the depot. Fifteen tracks separated them. The defendant had provided a bunkroom for its employees to sleep in and cars in which meals were served without charge. These meals were furnished at 6 in the morning, 12 noon, 6 in the evening, and 12 midnight. There was a restaurant near the shops on the same side of the tracks, at which plaintiff had got his dinner the first two days he was at work, but the proprietor, by the signs he had put up and in other ways, had indicated his sympathy with the strickers, and plaintiff, as he claims, was told by the superintendent that he must not get his meals there; if he did, he would lose his job. There was another restaurant on the railroad property, near the depot. A viaduct had been constructed by the city over the tracks near the machine shops. This was the usual way to go from the shops to the depot. While crossing this viaduct at one time, plaintiff was stopped by the strikers. He reported this to the superintendent, who said:

‘We should stay off the viaduct and not go across there, and save trouble. Mr. Helm said that if we had occasion to cross those tracks to go right across them,’ and, ‘I received instructions from Mr. Helm to remain on railroad grounds.’

Guards had been placed there to protect railroad property. The employees in the shops were not satisfied with the meals furnished them by the company, and made complaint about one-third or one-half of his meals at got about one-third or one-half of his meals at the restaurant across the tracks, as did many of the other men, and that they were several times seen, while eating, by the foreman of the shops, and that the superintendent said ‘that if we wanted anything from over there at the restaurant to go across the tracks and get it.’

Plaintiff worked 23 days for the defendant. It is his claim, based on his earnings, that he worked 16 2/7 hours out of every 24 during that time, while defendant's records showed an average of 14 20/23 hours. During the three days preceding midnight of August 3d, plaintiff claims he worked on an average 18 hours each day, while defendant's records showed he worked 16. He also testified that he ‘frequently worked there as high as 36 hours at a time, without rest or sleep.’ It is plaintiff's claim that he worked these long hours because requested to do so by the foreman, on account of the scarcity of men, and that he felt he must do so to hold his job. He testified:

‘When I would go into the roundhouse there at night about 7 o'clock and didn't have any intention of working, Mr. Moran and Mr. Meyers both have told me if I would go to work my time would go right on from 6 o'clock, when I quit to eat supper. Mr. Moran was general foreman and Mr. Meyers was house foreman, at night. John Harp was master mechanic, and Mr. Helm was superintendent.’

The effect of these long hours of work is thus described by him:

‘These long, continuous hours of service without rest or sleep made me dull and sleepy, and I was tired, and have gone to sleep while I was working. On one occasion I was told to work on a certain engine by either Mr. Meyers or Mr. Moran, and I went to work on an engine and he came along and hollered to me and wanted to know what I was doing. I told him I was fixing it, and he said, ‘You have got the wrong engine and are doing the wrong work on it.’ Then I went to the engine. He roused me up a little, I guess, and I went to the engine and done what I was supposed to do.'

On August 3d plaintiff began work at 6 in the morning and worked continuously until 11:15 at night. He had then completed the job he was at. Work after midnight had been assigned to him by the foreman. In company with a young man of about his age, who was working with him, he started to cross the tracks to get his midnight meal at the restaurant. There was a string of flat cars on one of the side tracks. Plaintiff took hold of the ladder on the side of a car, intending to pass over the bumpers between the cars, when the cars started to move. He thus describes what occurred:

‘I was at the end of the car on the ladder and did not have any warning of any kind that the train was going to start, and did not hear or see any signals of any kind that it was about to start, and Mr. Beyers was on the car next to me. The cars started west. I knew they were on a side track, and the cars got to going at about a speed of 10 to 12 miles an hour, and stopped very suddenly, so suddenly that it throwed me loose from the ladder and I fell to the ground, and the wheel ran over my hand and fingers. When the cars stopped so suddenly they came apart or broke apart.’

This action is brought to recover damages for the injury thus sustained under the provisions of the federal Employers' Liability Act (8 U. S. Comp. Stat. §§ 8657-8665). A verdict and judgment in his favor for $5,000 is here reviewed by defendant by writ of error.

1. It is insisted that there was no sufficient proof that plaintiff was engaged in interstate commerce to justify the submission of that question to the jury. One of plaintiff's witnesses testified:

‘I know the Wabash ran through Ohio, Indiana, and Michigan, and locomotives that Hugh and myself and others made repairs on were used for both freight and passenger trains through these different states.’

No proof was offered by the defendant as to whether the work in which plaintiff was engaged was interstate or intrastate. In its motion for a directed verdict at the close of plaintiff's case, and again at the close of the proofs, no claim was made that the proofs did not sufficiently show that plaintiff was engaged in interstate commerce. A somewhat similar question was before this court in Collins v. Michigan Central R. Co., 193 Mich. 303, 159 N. W. 535. The authorities were there considered and discussed by Mr. Justice Moore. The question was for the jury.

2. It is insisted that no negligence on the part of the defendant was established. While plaintiff made several claims in this respect, the court submitted to the jury but one, and in the following language:

‘Fifth. There is a claim on the part of the plaintiff that defendant was negligent in overworking him. This is the only claim of negligence that you can consider under the proofs in this case.

‘Then you are instructed, if you find under the evidence in this case that defendant, before the injury, knowingly permitted plaintiff to work more hours and in such a manner than an ordinarily prudent person would have permitted under similar or like circumstances, or if the defendant, by the exercise of ordinary and reasonable prudence, should have known that plaintiff was working more hours and in such a manner than an ordinary, reasonable, prudent person would have permitted, and as a result of said work plaintiff became, at the time of the injury, worn down in mind and physical strength, rendering him unfit to perform his duties in a reasonably prudent manner and to appreciate the dangers incident to his employment as an ordinarily prudent person would perform and appreciate them, and defendant knew that this overwork would produce lack of ordinary mentality and physical strength in plaintiff, or by the exercise of ordinary and reasonable prudence defendant should have known it, this would be negligence on the part of the defendant, and if this negligence was the proximate cause of plaintiff's injury, plaintiff can recover, unless this was an assumed risk incident to the employment.’

The only employment in which plaintiff had theretofore been engaged was in assisting his father in the work upon the farm. His age and inexperience were known to defendant's superintendent and foremen. They knew that he and other workmen were crossing these tracks to reach the restaurant, and that strings of box cars were on the tracks and that, to reach the opposite side, the men must cross over them. Under the proofs we think the jury might well have found that the men were in the habit of crossing over them, as plaintiff was endeavoring to do at the time he was injured, and that their doing so was known to the superintendent and men under whom they worked.

The effect upon the human system of such long, continuous hours of service must be considered a matter of common knowledge. A person who so works is not, at the end of the period, in a normal condition. His bodily strength necessarily becomes much exhausted, and his mental faculties cannot but be dulled and weakened. His condition renders him, not only unable to protect himself from danger, but more or less unmindful of his surroundings. He does not see things that he would otherwise observe, nor does he fully...