Erickson v. Milwaukee, L.S. & W. Ry. Co.

• Decision Date: 21 November 1890
• Citation: 47 N.W. 237,83 Mich. 281
• Parties: ERICKSON v. MILWAUKEE, L. S. & W. RY. CO.
• Court: Michigan Supreme Court

47 N.W. 237

83 Mich. 281

ERICKSON v. MILWAUKEE, L. S. & W. RY. CO.

Supreme Court of Michigan

November 21, 1890

Error to circuit court, Gogebic county; S. B. DABOLL, Judge.

Hayden & Young, for appellant.

M M. Riley and J. E. Ball, (Bradley G Schley, of counsel,) for appellee.

LONG J.

This cause was commenced in the circuit court for Gogebic county by declaration which was demurred to, and the demurrer sustained by the court below, and judgment entered in the cause for defendant. The declaration is as follows "State of Michigan. In the circuit court for Gogebic county. Andrew Erickson, plaintiff in this suit, by Hayden &amp Young, his attorneys, complains of the Milwaukee, Lake Shore & Western Railway Company, a railroad corporation in and existing under the laws of this state, defendant herein, of a plea of trespass on the case, filing this amended declaration," etc., "as commencement of suit: For that whereas, heretofore, to-wit, on the 7th day of November 1889, and for a long time prior thereto, defendant was and had been operating a line of railroad, with side tracks, at Watersmeet, in said county, and at and during the time aforesaid, in the construction, repair, and improvement of its tracks and road-bed, used and operated a certain train called a 'gravel train,' operated with a locomotive, and hauled back and forth in the loading and unloading of gravel upon and from the cars of said train. That said train, at the time and place aforesaid, was under the charge of a person variously called a 'foreman,' or 'boss,' or 'conductor,' who hired and discharged all employes of defendant engaged to work thereon, or thereabout, as laborers, and who was charged by the employer, said defendant, with the performance of all duties owing by the employer to such laborers, not to expose them to risks outside their employment or dangers which were extrahazardous, or perils, the nature of which the servants should not understand or appreciate. That a short time, -to-wit, thirty days,-prior to said November 7th, the plaintiff, a common laborer, was engaged and employed by defendant, acting through said boss, to work for defendant under the direction and control, and subject to the orders, of said boss, as a common laborer, in the shoveling of sand and gravel upon and from the cars composing said gravel train. And that the plaintiff thereupon begun his said employment and worked thereat for said defendant, in the capacity aforesaid, up to the said 7th day of November, 1889, and on that day, up to the time of suffering the injury herein complained of. That, in such employment, said boss or foreman was the person highest in authority, and the only person in authority acting in behalf of said defendant in the control and management of said train, and in the direction and control of plaintiff, and was the only person on behalf of defendant to whom plaintiff could complain or look for information, instruction, or protection, and there was no person representing the defendant superior to said boss in respect to all matters aforesaid. That on, to-wit, said 7th day of November, while plaintiff was standing upon one of the cars of said gravel train, as required in his employment, and in no danger, the plaintiff was, by the neglect and wrong of defendant, suddenly, without preparation, warning, or instruction, therein or...