Eastman v. Lake Shore & M.S. Ry. Co.

• Decision Date: 25 September 1894
• Citation: 101 Mich. 597,60 N.W. 309
• Parties: EASTMAN v. LAKE SHORE & M. S. RY. CO.
• Court: Michigan Supreme Court

60 N.W. 309

101 Mich. 597

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

Supreme Court of Michigan

September 25, 1894

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

Action by Orrin J. Eastman against the Lake Shore & Michigan Southern Railway Company. There was a judgment for plaintiff and defendant appeals. affirmed.

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

Barkworth & Blair, for appellee.

McGRATH C.J.

Plaintiff while engaged in uncoupling cars in the defendant's yard and while between moving cars for that purpose, got his foot caught in a stub switch, and was seriously injured. 3 How. Ann. St. � 3397a, provides that all railroad companies "are hereby required *** to so adjust, fill or block the frogs, switches and guard rails on their roads, in all yards, divisional and terminal stations, and where trains are made up, as to prevent the feet of employes or other persons from being caught therein." Defendant insists that a verdict for defendant should have been directed for defendant because (1) plaintiff failed to prove that the switch was not properly blocked; (2) that he failed to prove that he caught his foot in that part of the switch that could be blocked; (3) that he failed to prove that he was in the exercise of due and proper care; (4) that he voluntarily violated the rules of the company and his contract with the company; and (5) that he needlessly exposed himself to extra hazard by stepping between the cars (if he was to go between them at all) just as he was coming to the switch, when he could just as well have waited until the switch and blocking were passed.

The method of blocking this particular switch was by inserting between the stationary rails a piece of wood about two inches thick, chamfered off slightly on the corners so as to allow it to be run in between the head and foot of the rails. The surface of the blocking would be about one inch below the surface of the rails, and half an inch below the underside of the head of the rail. It does not appear when this blocking was placed in position. The defendant's roadmaster testified that the flanges of the car wheels would constantly wear the blocking until it got beyond their reach; that frequently the blocking was split the same day that it was put in; and that in the course of two or three days the blocking would be worn down, through its entire length, so that its surface would be practically level with the head chair, which was two inches below the surface of the rail, and an inch and a quarter below the bottom of the head of the rail. The object of the blocking is, of course, to prevent the foot or boot from getting below the flanges or projecting heads of the rail. The testimony tended to show that the method adopted for blocking this switch was defective, for the reasons given by the defendant's roadmaster; that other methods were in common use, which were simple, inexpensive, and efficient, and were so constructed with a grooved or guttered surface as to allow for the passage, without interference, of the car-wheel flanges, furring out that part of the rail which is below the head, and making it flush with the edge of the head of the rail. The testimony further tended to show that the surface of the block at the time of the injury was from two to three inches below the surface of the rails, and there was abundant testimony to show that plaintiff's foot was actually caught between the rails, and that, in consequence, plaintiff was struck and thrown down. Dr. Pratt, a physician, testified that soon after the accident he examined the blocking. He says: "There was a block there which was apparently very old, although I presume sound; that is, it was covered with grease and dirt. But it struck me that it was very low down; that is, I put my heel between the rails,-my shoe. My shoe could not catch, but it went down a good ways, so that if there was any flange on the heel it would probably have caught. My heel would go down between the rails most any point, with the shoe I had on, but it would not catch. It seemed to me that the blocking was pretty low. I know nothing about them, I am sure,-how it should be; but it seemed to be ample room to catch a heel anywheres along there, especially of a rubber boot. I examined the boot which Eastman wore. It gave evidence of the heel having been-The heel had been worn down very much on the outer side, and the heel had been, evidently by that accident, torn about two-thirds off from the outside. This part was all loose. The rubber was perfectly fresh; showed that it had been torn recently. It didn't have any appearance as you see now. It was perfectly black, like you find it in a fresh tear of the rubber. There were scratch lines on this side and that side of the boot, as though by some way the boot had been scraped along there; and I think that that boot is all right, just as I saw it there, except, of course, the markings are gone. The heel of the boot was torn about two-thirds off from the outer side, but still attached about one-third of its surface. The heel of my shoe seemed to go down at least two and a half or three inches."

The footings of the ends of the two stationary rails are covered by what...