O'Donnell v. Duluth, S.S. & A. Ry. Co.

• Decision Date: 21 December 1891
• Parties: O'DONNELL v. DULUTH, S. S. & A. RY. CO.
• Court: Michigan Supreme Court

50 N.W. 801

89 Mich. 174

O'DONNELL v. DULUTH, S. S. & A. RY. CO.

Supreme Court of Michigan

December 21, 1891

Error to circuit court, Marquette county; CLAUDIUS B. GRANT, Judge.

Action by Ellen O'Donnell, administratrix, against the Duluth South Shore & Atlantic Railway Company for damage resulting from the death of her husband while in defendant's employ. Defendant had judgment by direction of the court, and plaintiff assigns error. Affirmed.

E O. Clark, for appellant.

A E. Miller, A. B. Eldredge, and W. P. Healy, for appellee.

LONG J.

The plaintiff brings this suit as administratrix of the estate of James O'Donnell, deceased, Deceased was the husband of the plaintiff, and was employed by the defendant as an engine in spector. He had been in defendant's employ for several months, and for several years had been engaged in that kind of work for the defendant and other railroad corporations. His work was at the round-house of the defendant company situated near the east end of the company's yards. On the east end of the yard was Fifth street, in the city of Marquette, and extending along the north side of the yard, running east and west, is Washington street. The yard is several hundred feet in extent east and west, and is occupied by some 12 or 15 tracks. The deceased resided at the west end of Washington street, north and west of the railroad. In going to and returning from his house he sometimes passed through the yard, along the line of these various tracks, to the scales in the company's yard at the west end, and from there passed northward to his home. There was a traveled way for pedestrians passing from the round-house a little eastwardly and then north across these tracks to Washington street. There was also a way passing from the round-house directly southward of the tracks east to Fifth street. There was also a door leading from the round-house south to a wagon road extending eastward to Fifth street. On the night of November 22, 1888, between 6 and 7 o'clock, the deceased was on his way home from work. He started from the round-house, and walked along between the tracks in the yard westward, and had reached a point about 800 feet from the round-house, and opposite a coal trestle of defendant, when the last car of a train which was running onto the trestle left the track, and struck him, injuring him so that he died about an hour afterwards. The train consisted of seven cars, going about six or seven miles an hour up grade onto the coal trestle; and in passing over the switch the hind trucks for some cause jumped the track, the other cars passing over the switch in safety. At the point in the yard where the deceased was struck were 11 tracks, lying close together. The deceased walked between two tracks which were only seven feet apart; and on the north track, at the place where he was struck, was a lot of cars together, standing still, which barred his escape. These cars were struck and damaged by the car which jumped the track killing deceased. The allegation of negligence in the declaration is that "it was the duty of the said defendant to keep and maintain its said railroad track and its switches and its right of way between the said round-house and the said weigh-house in good repair, and in a reasonably safe condition, so that the said James O'Donnell, while passing rightfully over its said right of way between its main track and the next adjoining side track, carefully, and without negligence on his part, in going to and from his work as aforesaid, might do so without injury to his person; and that it was likewise the duty of the said defendant to keep the passage-way between the said main track and its said side track unobstructed and free from dangerous and sudden obstructions. And the plaintiff avers that the said defendant, neglecting its said duty, did not keep and maintain its said railroad track and its said switches and its said right of way and its said passage-way between its said two tracks in good repair and in a reasonably safe condition, and its said passage-way between its said tracks unobstructed and free from dangerous and sudden obstructions, but that, on the contrary, the said described switch, on the said 22d day of November, 1888, and for a long time prior thereto, was in a worn-out and shaky condition; and that the switch-bolts were loose, and the eye-holes in the connecting-rod and switch-rod were by long use so worn as to allow great...