Grand v. Michigan Cent. R. Co.

• Decision Date: 24 December 1890
• Citation: 83 Mich. 564,47 N.W. 837
• Court: Michigan Supreme Court
• Parties: GRAND v. MICHIGAN CENT. R. CO.

47 N.W. 837

83 Mich. 564

GRAND v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

December 24, 1890

Error to circuit court, Jackson county; ERASTUS PECK, Judge.

Loud & Price, for appellant.

Gibson & Parkinson, for appellee.

CHAMPLIN C.J.

This is an action on the case for negligently killing a brakeman who was in the employment of the company. The declaration contains three counts. The first count sets forth the employment of Allen J. Shivelle as a brakeman on one of defendant's freight trains; that Albion is a station on defendant's road, where trains are made up, and containing a yard for that purpose; that plaintiff, with other employes of defendant, were engaged in making up a train, and attaching cars together, and, in such employment, it became and was the duty of Shivelle "to fasten and couple a certain car, then standing upon the track occupied and used by the defendant, with and to certain other cars, which were then being moved and pushed by such locomotive engine towards and against the car so to be coupled and attached to them;" that, "in order to couple such cars together, it became and was necessary for said Shivelle to step over and inside the rails of said track upon which said cars were, and over a certain frog or switch denominated a 'split switch,' and there remain until the said cars were forced so close together that they could be coupled and attached by means of the apparatus for that purpose provided; and that, if said switch or frog had been properly constructed, or had been properly blocked, as it was the duty of said defendant to have done, it would have been entirely practicable and safe for said Shivelle to have stepped over said rails, and remained between said cars and the rails of said railroad track, while engaged in coupling said cars. But the said plaintiff avers that said railroad track and switch were not properly constructed, and said switch was not blocked, nor stopped up, so that the feet of employes and others could not enter, but was improperly constructed for the purpose of coupling said cars, to such an extent as to render it highly dangerous to said Shivelle to couple such cars in the ordinary and usual method hereinbefore stated, of which dangerous and improper construction and defects, and unsafe condition of said railroad tracks and switch or frog, the said defendant was then and there well knowing, and of which dangerous and unsafe condition the said Shivelle was ignorant. And said plaintiff avers that the said Shivelle, not having been informed, or knowing, of the dangerous and unsafe condition and improper construction of said tracks and switch or frog, or the danger incurred in coupling said cars at that place, did then and there attempt to couple and attach together such cars upon such defective and dangerous track, as said cars were being pushed and driven together by means of said locomotive engine. Yet the defendant, well knowing the premises, and that it was its duty to block all such switches and frogs, while it was so the occupier of said railroad, while there was such defective, unsafe, and dangerous track as aforesaid, to-wit, on the day and year aforesaid, at Albion aforesaid, negligently, wrongfully, and unjustly permitted the track and switch to be and continue in such defective, improper, unsafe, and dangerous condition. That, by means of the premises, and for want of proper apparatus, and for want of blocking in said switch or frog, the said Shivelle, while then and there engaged in the act of coupling together said cars, upon said track, with all due care and diligence, was necessarily and unavoidably caught by his foot in said switch or frog, and between said cars, and was then and there killed." The second count sets forth that Shivelle was engaged in coupling two cars together, and that defendant neglected to so adjust, fill, or block all frogs, switches, and guard rails on its road as to prevent the feet of its employes, and other persons, from being caught therein. The third count, which was permitted to be added upon the trial, avers that it was the duty of defendant to so adjust, fill, or block all frogs, switches, and guard-rails on its road, and in said yard, as to prevent the feet of its employes, or other persons, from being caught therein. And the plaintiff avers that the defendant wholly neglected this duty, and negligently, wrongfully, and unjustly permitted a certain switch, known as "the split switch," in said yard, to be and remain unblocked and unfilled. It then avers that Shivelle, while in the exercise of due care, and in the act of uncoupling cars, was caught by the foot, and killed by the train passing over his body. And the plaintiff averred that the said Shivelle came to his death then and there by means of the negligence and carelessness of the defendant in adopting and using, and in permitting to be used, such dangerous switches upon its railroad. The last count is the only one which sets up the injury as having occurred by uncoupling cars. The testimony for plaintiff showed that Shivelle had been in the employ of defendant for seven years, and, during the last two years, as brakeman. He was 25 years of age, and was killed at about half past 6 o'clock on the evening of November 7, 1888. The train upon which he was braking started from Jackson junction to go west to Michigan City, a distance of 153 miles. When it arrived at Albion, it stopped to do some switching. Cars were to be left, and some taken on, at that place. The brakeman doing the switching had command of the train for the time being. The engineer is under his control, and he conducts its movements through appropriate signals from the brakeman. At the time of the accident, Shivelle was the brakeman doing the work, and he had control of the train, which was cut in two, leaving the way-car upon the main track. He had thrown one car upon the side track, and there was another to be left, which was between two cars in that portion of the train attached to the engine, and which had passed the switch to the west, and laid on the main track.

Shivelle threw the switch so as to permit the train to back east on the main tracks. The switch lever was on the south side. By throwing the switch for the main track, the south arm of the switch was brought in close contact with the main rail on that side, and the north arm was brought away from the north main rail, about four or five inches at the extreme end, leaving the switch open upon that side. The ballasting came flush with the top of the ties, presenting a smooth level surface between the rails. The switches used upon the main line of the Michigan Central Railroad are what are designated as "split switches," and had been in use by defendant since the year 1883. In the construction of this switch a "frog" is not used. The movable rails of the switch are both between the stationary rails of the road, which, at the point of contact with the switch, are not parallel to each other. The one diverging forms a permanent and immovable rail of the switch track. The ends of the switch rails are placed on the inside, from a point about seven feet back, so as to form an acute angle at the point on the outside of the rail. In the use of this switch, one side is always open, and the other closed; that is, by closing one side the other is opened. Back of the planed portion, when the switch is open, the rail of the switch, and that of the main track, are nearly parallel, and about two inches apart for a distance of about seven feet, when they diverge, gradually leaving a wedge-shaped opening between the rails. On the side of the switch, which is closed back of the planed portion, there is a wedge-shape opening between the rails. But neither of these openings occasioned the injury to the brakeman Shivelle. By the use of these switches, the chance for accident is lessened one-half, through carelessness in leaving the switch open, as a train proceeding in the direction that the switch enters the main track will not be derailed. Its use is much safer for the traveling public, and for trains running at a high rate of speed, but is more dangerous for employes, than the frog switch properly blocked, inasmuch as it cannot be blocked without destroying its efficiency, as will be seen by the following cut:

RPT.CC.1890004479.00010

(Image Omitted)

After throwing the switch for the main track Shivelle crossed to the north side of the main track, and signaled the engineer to back his train. He was not seen afterwards alive. But it is inferred that he stepped between the cars, while in motion, to pull the coupling pin, as the shoe of his right foot was found in the open switch about a foot back from the point, and he lying upon the ground close to the outside of the north rail, with his head to the east, his feet about a foot east of the point of the switch. The wheels of the car had passed over his right leg below the knee, and then along the right side of his body. His left hand rested upon his lantern, the light of which was extinguished. The engineer saw his light go down, and, receiving no further signal, inquired where he was, and he was found as above. Life was extinct. When Shivelle went into the employment of defendant, he was furnished with the rules of the company, to which all employes were required to give their consent and conform to. ...