Glover v. Scotten

• Citation: 82 Mich. 369,46 N.W. 936
• Court: Supreme Court of Michigan
• Decision Date: 10 October 1890
• Parties: GLOVER v. SCOTTEN.

46 N.W. 936

82 Mich. 369

GLOVER v. SCOTTEN.

Supreme Court of Michigan

October 10, 1890

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

Conely, Maybury & Lucking, for appellant.

Henry M. Cheever and W. R Montgomery, for appellee.

GRANT J.

Plaintiff's decedent was a switchman in the employ of the Wabash, St Louis & Pacific Railway Company. The engine upon which he was employed ran into a truck owned by the defendant, and driven by his teamster, and resulted in the death of decedent. Plaintiff brings suit against defendant, claiming that the accident was the result of the negligence of his employe, and that such negligence was to be imputed to the defendant. Below is a diagram showing the situation of the tracks and streets near which the accident occurred. Woodbridge street is north of the freight-depot and Union Depot elevator and the tracks of the railroad company. The whole space represented upon the diagram is a part of the yard of the company. The space marked "road-way," leading from the Union Depot elevator to Woodbridge street, is a private way belonging to the company, but was constructed for the accommodation and convenience of those patrons of the company who had business at the elevator. All such, therefore, had the right to use it the same as if it were a public highway. Teams which had been to the elevator had their choice of going east to Twelfth street, thence to Woodbridge street, or north, by this roadway. There are two tracks on each side of the main track, near the place of the accident. The regular switch-engine was laid off for repairs, and a regular road-engine was being used for switching. The engine was going east on the main track to attend to some switching some distance beyond the road-way. The switch crew consisted of foreman, engineer, fireman, and the deceased as switchman. Tracks Nos. 4 and 5 were filled with freight-cars from a point RPT.CC.1890005840.00010

(Image Omitted) near the freight-depot up to near the crossing of the road-way, but space was left of sufficient width for teams to pass. Defendant's teamster had been to the elevator, loaded his truck, and was returning by this road-way, and, when the team was fairly upon the crossing, it was struck by the engine, resulting in the killing of the deceased, injury to defendant's teamster, and the destruction of the team and truck. The deceased, at the time, was sitting on the beam of the pilot, which is next the "cow-catcher," as it is called, with his feet hanging down over the cowcatcher. The deceased had no duty to perform while riding upon the engine. His duty consisted in attending to the switching of the tracks, getting on and off the cars for that purpose. The regular switch-engine has a step in front, upon which the switchmen stand when engaged in moving to and fro. This is for convenience and safety. The litigation resulting from this accident is anomalous. Defendant's teamster sued the railroad company for injuries; the company was found negligent, and judgment recovered, which was paid. The railroad company paid defendant for the loss of his team. Plaintiff sued the railroad company in the circuit court of the United States for the eastern district of Michigan, claiming that the death of deceased resulted from the negligence of the company in not ringing the bell, blowing the whistle,...