Fluhrer v. Lake Shore & M.S. Ry. Co.

• Decision Date: 19 September 1899
• Citation: 80 N.W. 23,121 Mich. 212
• Parties: FLUHRER v. LAKE SHORE & M. S. RY. CO.
• Court: Michigan Supreme Court

80 N.W. 23

121 Mich. 212

FLUHRER v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

September 19, 1899

Error to circuit court, Lenawee county; Guy M. Chester, Judge.

Action by Mary Fluhrer, administratrix, against the Lake Shore &amp Michigan Southern Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

John M Fluhrer, deceased, was a brakeman on the defendant's road between Adrian and Jackson. He was killed while switching at defendant's yard at Tecumseh, July 14, 1893, at a highway crossing. The defendant had three tracks at this crossing. The highway was planked between the tracks in the usual manner. Mr. Fluhrer was head brakeman. The engine had two cars attached, and had passed from one track onto the other. It was his duty to turn the switch, and then give notice to the engineer to back up. This he did. As the engine commenced to back he went forward to meet it, stepped between the two box cars upon the crossing to uncouple them, and in doing so was killed. The negligence charged is the failure to keep this planking in proper condition. It is claimed that the plank next to the rail had become worn away or split off so as to leave a space from 3 to 3 1/2 inches wide between the rail and the plank, so that, when Mr. Fluhrer stepped in, his foot got caught in this space, and caused the accident. Plaintiff recovered a verdict and judgment for $6,900.

C. E. Weaver (Geo. C. Greene and O. G Getzen-Danner, of counsel), for appellant.

Watts Bean & Smith, for appellee.

GRANT C.J. (after stating the facts).

Defendant requested the court to direct a verdict for it, and this request presents the first assignment of error.

1. It is urged that there is no proof that the decedent's foot was caught in the crack. The shoe was produced in evidence, made an exhibit, and returned to this court. It shows that in some manner it was run over by the wheel. Plaintiff gave testimony, from persons who were a short distance away, and reached the place of the accident within a few moments, that the shoe was found in the crack. The defendant gave evidence, from the engineer, conductor, and others, that they were first upon the scene, and that the shoe was outside the track. It has no marks of blood upon it. The foot and ankle were crushed. If, therefore, the foot was in the shoe at the time the latter was run over, it would have been covered with blood, but was not. The only other inference would be that the deceased pulled his foot from the shoe before the wheel struck it. We think this question was properly left to the jury.

2. It is urged that deceased assumed the risk, and that, if the defect was such as is claimed, it must or should have been known to him. For some time he had been a brakeman over this branch, and had done switching at this crossing and about 40 others. This is not like the case of Gleason v. Railroad Co. (Mass.) 34 N.E. 79, where the deceased had been working in the same yard for six weeks, during which time the planking had remained in the same condition. Nor is it like the case of Ragon v. Railway Co., 97 Mich. 265, 56 N.W. 612, where the side track had not been ballasted, while plaintiff supposed it was smooth, but he had passed the place frequently in the discharge of his duties. These cases are so different from this that we refrain from discussing the point further. It cannot be said, as a matter of law, that a brakeman must know the condition of the planking at every crossing along the line of the road.

3. The most difficult question is whether negligence is chargeable to the deceased in going between the moving cars to uncouple them. The deceased was an experienced brakeman, and had been in the employ of the company as brakeman for seven months was furnished with a copy of its rules December 28, 1892, and signed a contract in which he acknowledged to have received and read them, and especially 'the caution and rules numbers 601, 602, and 603, as shown on back hereof.' That portion of rule 602 applicable here reads as follows: 'Jumping on and off trains or engines when in motion, going between cars in motion to uncouple them, and all similar acts, are dangerous. All employ�s are warned that, if they commit them, it will be at their own peril and risk.' In this contract he agreed as follows: 'I will, so long as I remain in its service, faithfully respect and obey all said orders, rules, and regulations, and all others which may be adopted, and of which I may have notice; and I do further agree that I will, for myself, in all cases, before exposing myself in working, or in being on the track or grounds of the company, or in working with, or being in any manner on or with, its cars, engines, machinery, or tools, examine, for my own safety, the condition of all machinery, tools, tracks, cars, engines, or whatever I may undertake to work upon or with, before I make use of or expose myself on or with the same, so as to ascertain, so far as I reasonably can, their condition and soundness, and that I will promptly report, either to the superintendent of the company, or to its agent who may be my immediate superior officer, any defect in any track, machinery, tools, or property of the company affecting the safety of any one using or operating upon or with the same. The object of this agreement being--First, to protect me from suffering personal injury from any cause; second, that while the company will be responsible to me for the discharge of all its duties and obligations to me, and for any fault or neglect of its own, or of its board of directors or general officers, which are the proximate cause of injury, yet it will not be responsible to me for the consequences of my own fault or neglect, or that of any other employ�s of the company, whether they, or either of them, are superior to me in authority or not. It being expressly agreed on the part of the company that it is my right and duty, under all circumstances, to take sufficient time, before exposing myself, to make such examination as I have here agreed to, and to refuse to obey any order that would expose me to danger.' Defendant...