Fisher v. Chicago & G.T. Ry. Co.

• Citation: 43 N.W. 926,77 Mich. 546
• Parties: FISHER v. CHICAGO & G. T. RY. CO.
• Decision Date: 08 November 1889
• Court: Michigan Supreme Court

43 N.W. 926

77 Mich. 546

FISHER v. CHICAGO & G. T. RY. CO.

Supreme Court of Michigan

November 8, 1889

Appeal from circuit court, St. Clair county.

Action by Helena A. Fisher, as administratrix of the estate of George Fisher, deceased, against the Chicago & Grand Trunk Railway Company, to recover damages for the wrongful death of her husband, who was drowned while in the employ of defendant company. The court directed a verdict for the defendant, and plaintiff appeals.

CHAMPLIN J.

In the summer of 1885 the Chicago & Grand Trunk Railway Company were engaged in building a slip in the waters of the St. Clair river, in the city of Port Huron. This slip was constructed by driving piles in the usual manner; securing them by ties and bolts, and sheeting up the outer side. In prosecuting the work, two pile-drivers were used, and a small scow constructed for the purpose of transporting piles, and for the workmen to stand upon in securing and sheeting up the slip. In the center of this scow was a small derrick, used to assist the workmen in handling the piles. There were also two small boats used in connection with the work,-one a yawl-boat, and the other a bunty, about 16 or 18 feet in length, 4 feet in width, flat-bottomed, and propelled by sculling from either end. The scow above mentioned was moved from place to place with pike poles in the hands of the workmen. On the morning of the 4th of August, 1885, one of the pile-drivers was anchored at a point where the workmen were engaged in driving piles, and it lay at right angles to the row of piles, and across the current of the river. There were at this time four men upon the scow, who had been a short distance below, and laden the scow with some square timber, to be used upon the row of piles above the pile-driver. A short time before 12 o'clock the men were engaged in taking the scow around the rear end of the pile-driver. In doing so, they passed along the lower side of the pile-driver, until the scow projected about half its distance past the rear end, when a line from the pile-driver was made fast to a timber in the forward part of the scow and two of the men pulled in upon the line, and the third took in the slack; and Fisher, being upon the scow, went back with a pike pole, to push off. The efforts of the men pulling upon the line caused the forward part of the scow to swing towards the rear of the pile-driver; and, as the corner of the driver operated as a fulcrum, the rear end of the scow swung off at the same time. William Powers, who was upon the pile-driver, was the only eye-witness who testified as to the manner in which the accident occurred. His testimony was as follows: " Question. What was he doing? Answer. He was shoving this float around the end of the pile-driver. He had a pike pole in his hand. Standing on the scow, with the end of the pike pole on the pile-driver. He was on the lower end. There was two or three other gentlemen there. Q. What caused him to fall in? A. I think the pike pole slipped,-stuck in the timber and slipped out; and I think he overbalanced himself, and fell in. Q. What was done to try to rescue him. A. Well, I went out and threw him a plank. The plank did not reach him; so I jumped in the boat and went...