Dolson v. Lake Shore & M. S. R. Co.

• Citation: 87 N.W. 629,128 Mich. 444
• Parties: DOLSON v. LAKE SHORE & M. S. RY. CO.
• Decision Date: 22 October 1901
• Court: Michigan Supreme Court

87 N.W. 629

128 Mich. 444

DOLSON v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

October 22, 1901

Error to circuit court, Jackson county; Erastus Peck, Judge.

Action by David Dolson, administrator of the estate of Daniel Dolson, Jr., against the Lake Shore & Michigan Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed in part.

C. W. Weaver (Geo. C. Greene and O. G Getzen-Danner, of counsel), for appellant.

Wilson & Cobb, for appellee.

MONTGOMERY C.J.

This action is brought by Daniel Dolson, Sr., as administrator of the estate of his deceased son, Daniel Dolson, Jr., whose death occurred on the 3d day of October, A. D. 1898, under the following circumstances: Deceased and his halfbrother James Davis, were engaged in unloading crushed stone from gondola cars standing on defendant's team track in the yards in the city of Jackson. The stone was owned by one Robert Lake, a business man of Jackson, and was being unloaded into wagons for him by Davis and deceased. There were three cars of this stone standing upon the track at the north end of the yard, at the usual place of unloading into wagons. Standing on the track next north of the stone cars was a box car loaded with granite, and north of that a short distance, on the same track, was a car loaded with hoops. At the time of the accident Davis and Dolson had unloaded the north car of stone, and about one-half of the middle car beginning at the south end. These gondola cars are about 30 feet long, with boxes 3 feet high. About 11 o'clock a m., yard brakeman French backed down from the south on the team track with an engine and four cars, and told Davis and Dolson that he wanted to take out the car loaded with granite that was on the track beyond them, and that he was going to pull out the stone cars, and for them to pull in their screen. French then coupled to the stone cars, and went south, pulling out the whole string, including the empty stone car and the car of granite. As was their custom, Dolson and Davis remained in the half unloaded car. Dolson stood on the east side of the car, about six feet from the south end, leaning against the side of the car. Davis stood near the south end of the car, on the west side. This was about the position of the men at the time of the accident, a few minutes later. French took the whole train south and through the switch. The switch was then turned, and the train backed north on the main track. The car of granite and the empty stone car were cut off, and left on the main track, and the train again went south through the switch, which was again turned, and set for the team track. The train then backed north through the switch onto the team track, the train then consisting of the two stone cars in the rear, then four cars and the engine. After passing out onto the team track, the train being in motion, French cut off the two stone cars, and let them pass on to the north, at the same time saying to Davis to stop the cars where he wanted them. These two cars slowed up or stopped near the cattle chute. The testimony is in conflict as to whether the cars did or did not come to a full stop. French, seeing that the two cars of stone were not going to run down the track far enough, signaled the engineer to kick them further back. The engineer then went back with the engine and the four cars, and overtook the two cars of stone at or near the cattle chute. Whether the stone cars had then come to a full stop or were still in motion is uncertain. The fact is, however, that the cars came together when the south end of the half unloaded car was just opposite the cattle chute. It is claimed on the part of plaintiff that the stone cars had come to a full stop, and that the engine and the four cars struck the south stone car with such great and unnecessary force that Dolson, who was standing back about six feet from the south end of the car, leaning up against and having hold of the side of the car with both hands, bracing himself, was thrown over the south end of the car between the two stone cars, and was run over by the south stone car. He was run over by the trucks under the north end of the south stone car, and, to all appearances, drew himself from under the car before the south trucks reached him. His injuries were such as to leave no hope of his surviving them, and he died about midnight of the same day, being a part of the time conscious. The declaration contained two counts; the one under the survivor act, so called, and the other under the death act. A recovery was had under each count, in the sums of $800 and $1,200, respectively. The two principal questions argued are: First, whether plaintiff can recover at all; and, second, whether, if entitled to recover, he is entitled to maintain an action under both the survivor statute and the death act, and, if not, under which one he is entitled to recover.

The instruction of the circuit judge upon the first question was as follows: 'The term 'negligence,' as used in this case, means a failure by the defendant to perform some legal duty it owed to the deceased at the time of the accident. It was the defendant's duty, when it determined to move the car on which the deceased was working, and switch it back to the place where it originally stood, if the defendant's agents who had charge of and performed that work knew that deceased was standing on the car during the operation, to do the switching with such care and prudence as a reasonably careful and prudent man would exercise under the circumstances, and to run against the cars, on one of which the deceased was standing, with only such speed and force as was reasonably necessary for that purpose under the circumstances. It must be assumed that it was necessary to use some speed and force, or the result could not be accomplished. The defendant had the right to run against the stone cars with sufficient speed and force to move them into their proper positions. In doing so the defendant was performing an act necessary to be performed in the usual course of its business; and the deceased boy, when he chose to remain on the car during the operation, is chargeable with knowledge that the defendant would and must use such speed and force in running and switching the cars as was reasonably necessary for that purpose, and to have taken the chances of any accident which might result from the use of that amount of speed and force. The use of such speed and force as were reasonably necessary, under the circumstances, to switch the cars, was lawful, and the defendant was not negligent in using it. And if the defendant ran its engine and connecting cars against the stone cars with unnecessary speed and force, the employment of such unnecessary speed and force was a negligent act, and constituted negligence, as charged in the first and third counts of plaintiff's declaration. The question, then, upon this branch of the case, for you to determine, is, did the defendant use unnecessary force and speed, under the circumstances, in running its engine and connecting cars against the stone cars, upon one of which the deceased was standing at the time of the accident? This is a material proposition in the case, and I submit it to you as a question of fact, to be determined from the evidence bearing upon that subject.' We think that, as applied to the facts of this case, this instruction was correct. Chadderdon v. Railroad Co., 100 Mich. 293, 58 N.W. 998; Railroad Co. v. Anderson, 184 Ill. 294, 56 N.W. 331.

Upon the question whether plaintiff is entitled to recover under both the death act and the survivor act, my views have undergone no change since writing the opinion in Sweetland v. Railway Co., 117 Mich. 350, 75 N.W. 1066, 43 L. R. A. 568. On the contrary, my views have been fortified by a re-examination of the cases. Since that case was decided, the supreme court of Wisconsin, in an able opinion, written by Mr. Justice Marshall, and concurred in by the entire court, has held that under statutes similar to ours the two remedies are given. Brown v. Railroad Co., 77 N.W. 748, 44 L. R. A. 579. In addition to the case of Hurst v. Railway Co., 84 Mich. 539, 48 N.W. 44, cited in the Sweetland Case, our attention has been directed to the case of Hyatt v. Adams, 16 Mich. 180, the reasoning of which, in my judgment, supports the contention of plaintiff. The able opinion of Mr. Justice Christiancy cannot well be epitomized without detracting from the force of that able justice's convincing reasoning, but deserves a careful reading. It is suggested that the Sweetland Case decides that two remedies do not exist, and that all that now remains for decision is which remedy is open. I do not so read the Sweetland Case. In that case an action was brought with a count under the survival act and a count under the death act. On the trial the defendant had a verdict under the count on the death act. The plaintiff recovered under the survival act, and defendant alone appealed. The judgment was reversed. The holding, therefore, was that no recovery could be had under the survival act, under the facts of that case. Justices Grant and Moore were of the opinion that the testimony showed that the death was instantaneous, and that for this reason no recovery under the survival act could be had. Justice Long held that in any case where death results no recovery could be had under the survival act. In this view Justice Grant concurred, but neither of the other justices assented to this view. Justice Hooker expressed the view that in any case where the death was not instantaneous the survival act fixed the remedy, and no remedy was given by the death act. In this view none of the other justice concurred. The writer of this opinion expressed the view...