Doyle v. Toledo, S. & M. Ry. Co.

• Citation: 86 N.W. 524,127 Mich. 94
• Parties: DOYLE v. TOLEDO, S. & M. RY. CO.
• Decision Date: 17 June 1901
• Court: Supreme Court of Michigan

86 N.W. 524

127 Mich. 94

DOYLE v. TOLEDO, S. & M. RY. CO.

Supreme Court of Michigan

June 17, 1901

Error to circuit court, Gratiot county; George P. Stone, Judge.

Action by James Doyle against the Toledo, Saginaw & Muskegon Railway Company. From a judgment in favor of the defendant, plaintiff brings error. Reversed.

Watson & Chapman, for appellant.

Geer &amp Williams (E. W. Meddaugh, of counsel), for appellee.

MOORE J.

The plaintiff sued the defendant to recover for personal injuries received by him while in the employ of the defendant. The trial judge directed a verdict in favor of defendant. The case is brought here by writ of error.

The Sparta Brick & Tile Company is engaged, near Sparta and near the line of the defendant's road, in making bricks and tile. Their kilns are under a center building, upwards of 200 feet long. This building consists of posts set in the ground and extending above the ground about 16 feet, upon the top of which are plates. The roof boards extend from these plates to the center of the building, the highest point being midway between the rows of posts. On each side of the center of the building, and extending its entire length, is a lean-to, about 13 feet wide. The sides of the building are open. The outside of the lean-to is made of tamarack posts, 6 to 8 inches in diameter, set in the ground at intervals of 12 or 14 feet, and 12 feet high. On the tops of these posts plates are spiked. At frequent intervals rafters lead from the outside plates to the outside plates of the center building. The rafters are connected with each other by strips, some of which are 2 inches by 4 inches, and some 4 inches by 4 inches. Upon the tops of these strips inch boards, 16 feet long, were nailed, reaching from the plates on top of the 12-feet posts to the plates on the center of the building. The boards on the center building were loose, and when the fires were started in the kilns were removed from the center building, and slipped over on the roof of the lean-to. The defendant company built a siding into the lean-to from its track over the land of the brick and tile company, which company loaded the cars from bricks which had been taken from the kilns, and which were sometimes piled in the lean-to while awaiting shipment. When the cars were loaded, usually when the brakes were loosened, they could easily be run outside of the building, where they were received by the defendant company, but sometimes it was necessary to go into the building for them. The building was erected by the brick and tile company, and, so far as it was kept in repair, was repaired by them; the railroad company exercising no control over the building. The plaintiff was 25 years old. He had been a brakeman nearly 3 years. He was in the employ of the defendant, and had made four trips over its road in the capacity of a brakeman on a freight train. These trips took him near the building in question. On December 28 1898, the main part of the train was left near the station, while the locomotive and a box car were backed upon the siding for the purpose of getting two flat cars that were under the lean-to. The plaintiff was instructed to make the coupling. While the train was moving slowly, he was attempting to remove the pin from a Jenney coupler, which was attached to the moving car, for the purpose of making the coupling when he should reach the cars under the shed. He had got but 8 to 18 feet into the shed, when a portion of the roof fell, and he received the injuries which are the cause of this litigation. It is his claim that it was the duty of the defendant to furnish him a reasonably safe place to work, and to keep this building in a reasonably safe condition, and that, not having done it, the company was guilty of negligence which gave him a cause for action. The negligence is stated in the declaration as follows: 'Plaintiff alleges that said defendant wholly failed to maintain said building in a reasonably safe condition, or in reasonable repair, but it allowed said building to become old, rotten, and worn out; the roof and rafters thereof become weak, and in such a condition that they would separate from whatever substance or thing they were attached to; that said building had stood so long, and was in such a condition, that it was rickety, and was liable at any minute to fall from its own weight, and it not being of sufficient strength to hold itself together, which condition was apparent to any one upon any reasonable examination of the same; and this plaintiff alleges that it was the duty of said defendant to have examined said building, and to have ascertained its condition, but that said defendant wholly failed and neglected to make any such examination.' The testimony offered by the plaintiff was to the effect that the building was not properly constructed in the first place, that it was old and weak, and that its condition was apparent to any one who would examine it, and that about two years before the accident occurred a portion of the roof had fallen. On the part of the defendant the testimony was to the effect that the building was well built, and was of the same character of construction usual for buildings erected for the purpose for which this was used. The testimony showed that when the portion of the roof fell, about two years before the accident, its falling was occasioned by a heavy fall of snow, coming upon a portion of the roof which was a part of an extension then in process of construction before the posts and rafters were permanently in place; that the building had been in constant use by the employ�s of the brick and tile company, and that there was nothing in its appearance to indicate to any one there was any danger of its falling. The lean-to was built to keep the rain off the said of the kiln, and from the bricks piled under the lean-to, and to protect the men when loading the cars. The shed was so low the locomotive could not be run under it. If refrigerator or furniture cars were run under it, they would hit against the rafters and boards,...