Dewey v. Detroit, G.H. & M. Ry. Co.

• Decision Date: 28 July 1892
• Citation: 52 N.W. 942,97 Mich. 329
• Parties: DEWEY v. DETROIT, G. H. & M. RY. CO.
• Court: Michigan Supreme Court

52 N.W. 942

97 Mich. 329

DEWEY v. DETROIT, G. H. & M. RY. CO.

Supreme Court of Michigan

July 28, 1892

Error to circuit court, Wayne county; GEORGE GARTNER, Judge.

Action by Calvin B. Dewey against the Detroit, Grand Haven &amp Milwaukee Railway Company for injuries received as a brakeman. Judgment for defendant. Plaintiff brings error. Reversed.

Dickinson, Thurber & Stevenson, ( Elliott G. Stevenson, of counsel,) for appellant.

E W. Meddaugh, (Otto Kirchner, of counsel,) for appellee.

MCGRATH, J.

Plaintiff a brakeman in defendant's employ, was injured while attempting to recouple, after dropping two cars at the Lake Shore junction, near Detroit, at 2 o'clock in the morning of October 21, 1890. The last car on the moving section of the train was what is known as a "sand flat car," upon which the bumpers are much shorter than in the ordinary car. The car to be attached was one laden with lumber. The lumber projected several inches beyond the end of the floor of the car, leaving a space of but seven inches, when the cars were coupled, between the ends of the lumber and the end of the sand flat car. When plaintiff went between the cars they were two rods apart. With the aid of his lantern he noticed the character of the drawbar and bumpers upon the sand flat car, and held up his light, and saw that the other car was an ordinary flat, but did not notice that the lumber projected beyond the end of the car. When the cars came together plaintiff's body was caught between the lumber and the end of the sand flat car, his arm was thrown between the bumpers and crushed. At the conclusion of plaintiff's case the court directed a verdict for defendant, upon the ground that the proximate cause of the injury was the improper loading of the lumber car, and that, as defendant had made provision for the inspection of cars, the negligence was that of the inspector, who was a fellow servant of the plaintiff. The rule that the master must furnish the servant with a reasonably safe place in which to perform his work has been settled by repeated decisions of this court. Van Dusen v. Letellier, 78 Mich. 492, 44 N.W. 572; Morton v. Railroad Co., 81 Mich. 423, 46 N.W. 111; Roux v. Lumber Co., 85 Mich. 519, 48 N.W. 1092; Irvine v. Railroad Co., (Mich.) 50 N.W. 1008. It is also well settled that this duty cannot be delegated to another, so as to relieve the master from personal responsibility. Van Dusen v. Letellier, supra; Morton v Railroad Co., supra. These cases clearly overrule the doctrine of Smith v. Potter, 46 Mich. 258, 9 N.W. 273. It was there held that the duty of inspection was not one of management or supervision, and that inspectors and brakemen were in the strictest sense fellow servants. In the Van Dusen and Morton Cases, it was held that the duty of inspection was one that could not be delegated so as to relieve the master of liability. Justice MORSE, in the Van Dusen Case, says: "If the master can delegate this duty to an employe, and apply the doctrine of fellow servant to such employe, because he is working in and about the same business, and in the same general line of such business,-as, in this case, the manufacture and piling of lumber,-then the employer is permitted to shirk his duty upon another, and then allowed to escape all responsibility and liability upon the plea that the person injured is the fellow servant of his delegate or agent. The law, as I understand it, will not permit this. It is a duty the master owes, which he cannot delegate to a fellow servant of his employes. If he picks out one of the men working about the mill, and imposes upon him the duty of seeing that the machinery is kept in safe repair, or delegates to one of the men working in the mill yard the duty of seeing that these docks are kept safe and sound, these men, as far as these duties are concerned, stand in the place of their employer, and their negligence is his negligence." CHAMPLIN, J., concurring, says: "I do not think the duty of inspection, when such inspection is required by the circumstances of the case, can be delegated by the master in such manner as to avoid responsibility, and I concur in reversing the judgment." CAMPBELL, J., who wrote in the Smith Case, says: "I agree in reversing the judgment, but I do not think it proper to throw doubt on our previous decisions which have dealt with the questions in this cause." The Morton Case, by a very full and able opinion by CAHILL, J., reaffirms the doctrine of Van Dusen v. Letellier. In Irvine v. Railroad Co. we held that it is as much the duty of the company to see that cars are so loaded that brakemen will have reasonably safe access to the brakes and an opportunity for the discharge of their duties, as it is to see that proper appliances are provided. In the discussion of that question, however, I am satisfied that the statement made in that opinion, that if the cars were inspected, or if the company provided the means for their inspection, by a fellow servant, and the inspector neglected his duty, then there would be no recovery, is not supported by the later decisions of our own court, nor by the weight of authority elsewhere. Shear. & R. Neg. (4th Ed.) �� 194-204; Railroad Co. v. Fox, 31 Kan. 586, 3 P. 320; Ford v. Railroad Co., 110 Mass. 241; Hough v. Railroad Co., 100 U.S. 213; Railroad Co. v. Herbert, 116 U.S. 652, 6 S.Ct. 590; King v. Railroad Co., 14 F. 277; Lewis v. Seifert, 116 Pa. St. 648, 11 A. 514; Railroad Co. v. De Armond, 86 Tenn. 74, 5 S.W. 600; Fay v. Railroad Co., 30 Minn. 231, 15 N.W. 241; Gutridge v. Railroad Co., 94 Mo. 468, 7 S.W. 476; Fuller v. Jewett, 80 N.Y. 46; Gottlieb v. Railroad Co., 100 N.Y. 466, 3 N.E. 344; Railroad Co. v. Kernan, 78 Tex. 294, 14 S.W. 668; Hulehan v. Railroad Co., 68 Wis. 520, 32 N.W. 529; 7 Amer. & Eng. Enc. p. 825, and note. The doctrine of these cases is that, when it is the duty of the master to furnish sound apparatus, machinery, etc., and defective machinery causes an injury to the servant, the rule which exempts the master from liability for injury to servants through the negligence of a fellow servant does not apply.

In Hulehan v. Railroad Co., supra, it was held that, where a railway company permitted its track to be incumbered with sticks and blocks of wood at places where plaintiff was called upon to perform his duties in coupling cars, by reason of which he was injured, the negligence of permitting the roadway to be obstructed was that of the company. At best the duties of brakemen are dangerous, and it is the plain duty of their employers to provide against increased peril. There is no reason why one rule should apply to the case of a defective brake chain, and that another should govern a case where a car has been so improperly loaded as to prevent the use of the brake without great hazard. In the recent case of Railroad Co. v. Shean, (Tex. Sup.) 18 S.W. 151, the cars were improperly loaded, but the decision was put upon the ground that the plaintiff knew that the car was loaded in such a manner as to render the attempt to couple it extremely hazardous. In the present case plaintiff had no such knowledge. It is insisted, however, that this lumber car was one received from another company; but the obligation to receive cars from other roads does not require the reception of defective cars, or cars so loaded as to render their transportation hazardous to employes. The duty is not one to be discharged without reward. The service rendered is not gratuitous. As was said by CAMPBELL, J., in Smith v. Potter: "This [duty imposed by statute] does not require the transfer of cars unfit for passage. * * * There is no...