Carlson v. Cincinnati, S. & M.R. Co.
| Decision Date | 28 June 1899 |
| Citation | 120 Mich. 481,79 N.W. 688 |
| Parties | CARLSON v. CINCINNATI, S. & M. R. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Bay county; Andrew C. Maxwell, Judge.
Action by John Carlson against the Cincinnati, Saginaw & Mackinaw Railroad Company to recover damages for personal injuries. There was a judgment for plaintiff, and defendant brings error. Reversed. Geer & Williams (E. W. Meddaugh, of counsel), for appellant.
Simonson Gillett & Courtright, for appellee.
GRANT C.J. (after stating the facts).
The only ground of negligence upon which plaintiff could recover was that submitted to the jury, viz. the failure to have an employ� stand upon the footboard of the tender to warn him. The object of the rule requiring an employ� to be upon the footboard when backing across public highways is for the protection of the public, and not of the employ�s of the company. Rohback v. Railroad, 43 Mo. 147 There was no more danger to the defendant in working upon this crossing than there was at any other part of the tracks in the yard outside the highway. There is no testimony tending to show that employ�s understood that this rule was intended for a protection to them, or that the plaintiffs so understood it. Evidently he knew that he was going into a place of danger that it was his duty to keep a sharp lookout for his own protection; and that he did not rely upon such a warning because he stood there 10 to 15 minutes, waiting for this engine to pass over. All the witnesses who testified upon the subject, both those for the defendant, as well as for the plaintiff, testified that it was the plaintiff's duty to watch out for approaching cars, and to get out of the way. One of the rules of the company provides: "Trackmen may expect trains at any moment, and must always be on the lookout and prepared for them." It is expected, and it is not unreasonable, that trackmen should look out for approaching trains and engines, and especially in yards where they may be expected at any moment. There was a train going upon another road, and there was a mill near by, making some noise. The law did not permit the plaintiff to rely upon his sense of hearing alone. Obviously he did not intend to, but it is certain that he did. He knew that the engine might come that way. The engineer had signaled for the right to cross. There is nothing to show that he did not hear this signal. The gates were closed. A glance at his surroundings would have warned him of danger. A glance every few seconds towards this engine would have disclosed its approach. Such precaution would not have interfered with his work, and, if it would, there is nothing to indicate that the defendant prohibited him from taking it, or that it expected him to work without...
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