Fowles v. Briggs

• Decision Date: 29 March 1898
• Court: Michigan Supreme Court
• Parties: FOWLES v. BRIGGS ET AL.

74 N.W. 1046

116 Mich. 425

FOWLES v. BRIGGS ET AL.

Supreme Court of Michigan

March 29, 1898

Error to circuit court, Saginaw county; Byron A. Snow, Judge.

Action by John S. Fowles against Daniel W. Briggs and another. From a judgment for defendants, plaintiff brings error. Affirmed.

George W. Weadock and John F. O'Keefe, for appellant.

Hanchett & Hanchett, for appellees.

MONTGOMERY J.

Alexander F. Fowles, plaintiff's intestate, on the 4th day of February, 1896, was an employ� of the Flint & Pere Marquette Railroad Company. His employment was that of rear brakeman on a freight train. The defendants, lumber dealers, loaded a flat car with lumber, in their yards in the city of Saginaw and shipped it over the Flint & Pere Marquette Railroad Company, to Toledo, Ohio. The lumber was maple, 11,000 feet weighing about 33,000 pounds, and piled flat upon the car in two tiers parallel with the sides of the car. It was put upon this flat car by the defendants three days before the day of the accident. The testimony of the plaintiff tended to show that the railroad crew, of whom the deceased was rear brakeman, were ordered by the railroad company, on the morning of the 4th of February, to make up some freight trains for transportation; and, in the line of their duty this car load of lumber was shunted at a rate of not to exceed from three to five miles an hour upon a level track towards a box car. The deceased was upon the ground, and stepped in between the box car and the car load of lumber for the purpose of coupling the two; and, when the car of lumber came in contact with the box car, the lumber shifted 25 inches upon the surface of the flat car, and crushed to death the deceased, by pinning him against the end of the box car.

The plaintiff's declaration declares the several acts of negligence of the defendant to be (1) that they carelessly and recklessly loaded said flat car of said railroad company so as to cause the death of the deceased by the shifting of the lumber while upon said car; that said lumber was so loaded upon said car that it was not safe for an employ� of said railroad company to couple it to another car, and that said danger was not apparent to deceased; (2) that it was the duty of said defendants not to ship maple lumber upon a flat car without having the lumber so fastened and staked as to hold it from shifting; (3) that a piece of timber or other material should have been placed crosswise upon the floor, and near the ends of said flat car, under the lumber, for the purpose of elevating the extreme ends of the lumber; (4) that the defendants loaded this lumber upon the deck of said car, while the deck was covered with ice and snow and sleet, and in a slippery condition; and (6) that the lumber should have been placed in a box car, and not upon a flat car. The cause was tried before a jury, and, after the proofs were all in, the trial judge said to the jury that "the evidence failed to show that the defendants violated any legal duty that they owed the deceased. Consequently, there is no question of fact to be submitted to you for consideration. Your verdict, therefore, will be in favor of the defendants of no cause of action."

The deceased had no contract relations with the defendants, and if his representative has a right of action based upon defendants' negligence, it must rest upon a duty owed to deceased in common with all other employ�s of the Flint & Pere Marquette Railroad Company, or other road over which the car in question might ultimately be shipped; in short, a breach of a duty owing to the public. An accurate statement of this duty is: "If a person undertakes to do an act or discharge a duty by which the conduct of another may be properly regulated and governed, he is bound to perform it in such manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of his negligence." Whart. ...