Fitzsimmons v. Milwaukee, L.S. & W. Ry. Co.
| Decision Date | 22 December 1893 |
| Citation | 57 N.W. 127,98 Mich. 257 |
| Parties | FITZSIMMONS v. MILWAUKEE, L. S. & W. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Gogebic county; Norman W. Haire, Judge.
Action by Matthew Fitzsimmons against the Milwaukee, Lake Shore & Western Railway Company for personal injuries. There was an order overruling a demurrer to the complaint, and defendant brings error. Affirmed.
M. M Riley, (Alfred L. Cary and Bradley G. Schley, of counsel,) for appellant.
M. H Crocker, (John D. Conely, of counsel,) for appellee.
Plaintiff brought an action for an injury sustained, while a passenger on one of defendant's trains of cars, by a collision between the train upon which he was a passenger and another engine, in charge of an engineer in the defendant's employ. The declaration alleges, in substance, that the engineer in charge of this wild engine, No 48, "knew, or ought to have known, that he did not have time to reach Ramsey before said passenger train would pull out of Ramsey, going east, and that said engineer of said locomotive No. 48 attempted to make the run to Ramsey without any order or permission from the proper officer of said defendant, and in violation of the rules and regulations of said company in regard to the running of trains upon said road; that, by the rules and regulations of said company, it was forbidden that any engineer or conductor should run his train or engine upon the time of any other train, and that it was also forbidden that such engineer or conductor should run his engine or train from one station to another, or from any point upon the line to another point upon the line, without permission or order from an officer of said company, called a 'train dispatcher;' that said collision was caused by the negligence, carelessness, and imprudence of said engineer of said locomotive No. 48, and by his said disregard and disobedience of said rules and regulations of defendant, and by said defendant not having and providing a conductor for said locomotive No. 48." The defendant demurred to this declaration, and states in his brief that there is not only no allegation of negligence on the part of defendant, but an affirmative allegation that the act causing the injury complained of was the act of the engineer alone, which the defendant could not possibly prevent, and which it had taken every possible precaution to provide against; and it is urged that while...
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