Erickson v. Milwaukee, L.S. & W. Ry. Co.
| Decision Date | 04 November 1892 |
| Citation | 93 Mich. 414,53 N.W. 393 |
| Parties | ERICKSON v. MILWAUKEE, L. S. & W. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Gogebic county; NORMAN W. HAIRE, Judge.
Action by Andrew Erickson against the Milwaukee, Lake Shore & Western Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error. Affirmed.
M M. Riley, (Bradley G. Schley, of counsel,) for appellant.
Hayden & Young, for appellee.
This case was in this court on appeal from the order of the court below sustaining demurrer to the declaration, and is reported in 83 Mich. 281, 47 N.W. 237. It was there said: The order sustaining the demurrer was overruled, and the case sent down for trial. It has been tried, and resulted in a verdict and judgment in favor of the plaintiff. Defendant now brings error.
On the trial the defendant contended, and contends here, that there is variance between the proofs and the declaration, and that the court below should have directed the verdict in favor of the defendant for that reason. This claim is based upon the proposition that plaintiff's proofs tended to show that the duties pertaining to a brakeman had nothing to do with his injuries, which, if they resulted as claimed, were owing to a subsequent and distinct order, given after the duties of brakeman were discharged; while the allegation in the declaration is that the plaintiff, being a common laborer whose duty it was to shovel gravel, was sent to perform the duties of a brakeman, and pull a pin between two cars, and assist in separating them, and to jump from one car to another, the distance between which was rapidly increasing by reason of the letting off of the brake by the foreman without plaintiff's knowledge; the real point of the claim being that the plaintiff had safely performed the work of pulling the pin, at which time his duties as brakeman ended, and when he jumped his duties as a common laborer had commenced. It must be confessed that this reasoning is altogether too subtle to have much weight. It is asking the court to determine as matter of law upon the facts found that up to the instant the pin was pulled plaintiff was acting in the capacity of brakeman, when at that identical moment that duty ceased, and his duty as a common laborer commenced, so that as a brakeman he pulled the pin, but in the act of jumping he was a loader of gravel. The plain facts are that defendant's foreman, Moleski, had full charge of this gravel train, and complete control over every one employed working under him. He had full power to hire all laborers engaged in the work and to discharge them. To him alone could they make complaint, and he directed the movements of this train. Plaintiff was injured upon the train upon which he had been accustomed to throw gravel. The order given him by Moleski to pull the pin and jump from one car to another was obeyed, and, as plaintiff says, because he supposed he must obey the order of Moleski, or he would discharge him. Moleski himself had command and control of the brake, and when he gave the order to pull the pin and jump he knew his command would be obeyed by the plaintiff. It was one continuous act, and took but a moment of time. Moleski had put the plaintiff in a place of danger to which he was not accustomed, and for which he was not originally hired; and it cannot be said that the danger had passed, and his duties as brakeman ended, after the pin was pulled, and before he had obeyed the further order to jump to the opposite car. It was one continuous act, and we...
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