Farmer v. Michigan Cent. R. Co.

• Citation: 99 Mich. 131,58 N.W. 45
• Court: Supreme Court of Michigan
• Decision Date: 20 February 1894
• Parties: FARMER v. MICHIGAN CENT. R. CO.

58 N.W. 45

99 Mich. 131

FARMER v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

February 20, 1894

Error to circuit court, Washtenaw county; Edward D. Kinne, Judge.

Action by Charles Farmer, administrator of the estate of Elmer L Van Deusen, deceased, against the Michigan Central Railroad Company, for damages for the death of plaintiff's intestate. Judgment for plaintiff. Defendant brings error. Reversed.

M. V. &amp R. A. Montgomery, for appellant.

A. J Sawyer, for appellee.

HOOKER J.

The Toledo & Ann Arbor Railroad crosses the Michigan Central Railroad at Ann Arbor, above grade, and nearly at right angles. The tracks of the two companies are connected by a Y over which a large number of cars are daily transferred from one road to the other. At the point involved in this case, the Michigan Central Company has four tracks, numbered from 1 to 4 upon the accompanying diagram of the premises.

RPT.CC.1894004801.00010

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The outer one, marked 4, is the main track. No. 3 is its long siding. No. 2 is another siding, kept for the deposit of cars from the Toledo & Ann Arbor road; while No. 1 is still another siding, the use of which does not appear to have any significance. It is a track which branches from No. 2, and is connected by the switch B, as is a short track connecting sidings numbered 2 and 3, the connection with No. 2 being at switch marked C. On the day in question, the engine of the Toledo & Ann Arbor Company was standing on track No. 2, awaiting the return of the Michigan Central engine over the Y from the Toledo & Ann Arbor yard. It necessarily stood sufficiently far west of switch B to permit the Central engine to clear it as it passed over the short track from track 2, with which the Y was connected to track 3, which, as the diagram shows, must have brought its tender near to switch C. Plaintiff's intestate was a switchman, employed by the Toledo & Ann Arbor Company, and, after the return of the Central engine, threw the switch so that the Toledo & Ann Arbor engine could go upon the Y, and crossed the track, and stood with a fellow brakeman, one Wright, awaiting his engine, a signal being given by Wright to the engineer. These men were expected to get upon the footboards of the engine as it passed,-Wright in front, and Van Deusen in the rear. The testimony shows that the engine came down slowly for that purpose, attaining a speed of five or six miles an hour, when Wright stepped on, leaving Van Deusen standing between tracks 2 and 3. Meantime the Central engine backed up to and beyond switch C. It had a box car attached to its pilot, so that on its return from switch C it was pushing the car. After this engine had passed switch C, the Michigan Central brakeman threw the switch so that it would return upon track 3, and, when it came by, climbed upon the box car. He testifies-and there is no testimony to the contrary-that as he climbed up the side of the car, when near the top, he saw Van Deusen standing with his heels close to track 3, apparently...