Foley v. Chicago & N.W. Ry. Co.
| Decision Date | 21 June 1882 |
| Citation | 48 Mich. 622,12 N.W. 879 |
| Parties | FOLEY v. C. & N.W. RY. CO. |
| Court | Michigan Supreme Court |
In an action for negligently causing the death of plaintiff's intestate, a switch tender employed by a railway company through the explosion of nitro-glycerine being transported by it on its road, it was held that the defendant, in complying with a proper request from another railroad company to run for it a short distance one of its cars, to be loaded with an article, safe when properly handled, but dangerous when carelessly handled, is not bound to assume negligence on the part of those handling it would occur, nor bound to take measures for the protection of its servants on that assumption.
When the order for switching the car was given, decedent was notified that the car must be kept out of the way of the passenger train, which would be due after a time, and that if not loaded in due season it must be side-tracked. Such order was an order of caution and not of negligence.
Where there was no evidence tending to fix upon the defendant, its officers or agents, any neglect of duty or any want of due care, judgment for defendant must be affirmed.
Error to Marquette circuit.
G.W. Hayden, for plaintiff in error.
B.C. Cook, for defendant in error.
Action for negligently causing the death of the plaintiff's intestate. The declaration avers that on the second day of January, 1878, the decedent was in the employ of defendant as a switchman, upon and about the switch locomotive No. 241 owned and operated by defendant; that it was his duty as such switchman at the time aforesaid by the nature and terms of his employment to attend and be with said switch-engine in the handling of cars of ordinary freight and to perform the ordinary duties of an ordinary switchman in the defendant's service; that it was not contemplated in his employment that nitro-glycerine was an ordinary or proper freight, such as would be loaded into the cars of defendant to be handled by said switch engine while he was employed thereon, but that the handling of the same was extra-hazardous employment as to him and beyond and out of the line of his employment as such switchman; that on the day aforesaid there was a large lot of nitro-glycerine stored at a point on the line of defendant's road between Ishpeming and Neguanee, and decedent was ordered by defendant to go with said switch-engine and take a car to the place where the same was stored, to be loaded with the same, and to haul the same away when loaded; that such order was wrongful on the part of defendant and contrary to the employment of decedent that nitro-glycerine is exceedingly explosive and dangerous that the decedent had no experience with or knowledge of its dangerous qualities, and defendant wholly neglected and failed to inform him of its dangerous nature and qualities, or to warn or caution him as to any measures for his safety; that decedent obeyed said order, and proceeded with said switch-engine to the place where said nitro-glycerine was stored, and while there and in the exercise of proper care was killed by its explosion. The negligence here charged against the defendant is seen to consist in sending him into the vicinity of a dangerous explosive without informing him of the danger and giving proper caution.
A second count sets out facts to show that the nitro-glycerine was improperly put up in ordinary tin cans wholly unprotected, and for that reason was specially liable to explosion in handling, and exposed those coming near it to...
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