Hammond v. Chicago & G.T. Ry. Co.

• Decision Date: 21 November 1890
• Citation: 83 Mich. 334,47 N.W. 965
• Parties: HAMMOND v. CHICAGO & G. T. RY. CO.
• Court: Michigan Supreme Court

47 N.W. 965

83 Mich. 334

HAMMOND v. CHICAGO & G. T. RY. CO.

Supreme Court of Michigan

November 21, 1890^[1]

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

Frank L. Dodge, for appellant.

L C. Stanley, for appellee.

CAHILL J.

The plaintiff brings this suit as the wife of Charles Hammond who was killed on Sunday, the 5th day of August, 1888, about 9 o'clock in the forenoon, on defendant's railroad track near Warner's crossing, in Shiawassee county, by a westward-bound passenger train over defendant's road. The deceased had been in the employ of the defendant about three months as a section hand on the particular section of road where the accident occurred. He was a middle-aged man, and of ordinary intelligence. On the morning of the accident, Hammond, in company with Charles Haley, the section foreman, and Fred King, a fellow-laborer, started with a hand-car from the car-house at Shaftsburg, about 8 o'clock, standard time, on a tour of inspection. They went west about five miles, and started back. When they were about 150 feet west of Warner's crossing, and while they were looking out for a train, they saw the smoke-stack over the bank to the left of the road, and at a distance in front of them of about 50 rods. The whistling-post was 40 rods east of the crossing. At the same moment they heard the whistle. Commencing a short distance east of the crossing was a curve in the road, running through a deep cut, the sides of which were about 25 feet high, so that a train approaching from the east could not be seen by persons at or west of the crossing until it had approached to the point near the whistling post where the deceased, and those who were with him, saw it on the morning in question. Fred King, who was on the hand-car at the time, says they were going very slowly, about five miles an hour. "We were all on the watch of the curve looking out, providing anything should appear to our sight in the shape of a train or smoke-stack. We were all on the watch, and as we were approaching along, with our eyes directly ahead watching for smoke or sound, we all at once saw the smoke just right up over the bank, at the edge of the bank, and I immediately put my foot on the brake at my side,-I am always ready for it; and Mr. Hammond just whirled, jumped in front of the car, and caught it, and Mr. Haley dropped over at the back, and I jumped off, with Mr. Haley, at the back. We caught hold and swung it around, leaving the two front wheels in the center of the track, kittering crosswise. We pulled on it twice. I then sprung to the front part of the car, and caught hold of the handle, and lifted that wheel that was just inside of the rail. Mr. Haley was pulling on the other end in the ditch. I pushed twice. It didn't go. Then I took thought, and sprung right to one side, and hollered: 'Let her go. Out of the way!' And just at that everything went smash. When I hollered, 'Let her go. Out of the way!' Hammond immediately looked back over his right shoulder, wild; made two or three steps, running down the track, kittering like the car running down the track to get out of the way. The last I seen him, he looked very wild, as he was on the go,-wild and frightened." The witness further testified that, after helping Haley lift over the west end of the car from the track, he stepped around to the other end with Hammond to help him, both having their backs towards the approaching train, and both standing inside the rails; that at the time he called "Look out," Hammond could have stepped out of danger by taking two steps, but that, being bewildered, he took as many along the track, instead of over the track, when he was struck by the train and killed. The train was not a regular passenger train but what is known as a "wild" train. Dorr Shaft, a witness for the plaintiff, testified that he heard a conversation between the agent and operator at Shaftsburg and Mr. Haley that morning with reference to special trains being on the road. "Think he said there was one special train, and that he told it to all of us. He was talking to Mr. King, Mr. McConnell, Chas. Hammond, Chas. Haley, and witness. Didn't know what train he referred to; he said, 'Look out, there is a special coming."' The operator, when called as a witness, said he told King about the special train, but did not think the others heard it. It is quite evident, however, that all of the men were expecting and looking out for this train, and were taking some precautions against meeting it by going slowly, and keeping a sharp lookout as they approached the curve in the road.

The negligence of the defendant, set out in the amended declaration, which is the only count upon which a recovery could be claimed on this record, is as follows: "And the plaintiff avers that it became, and was, the duty of the defendant to provide a careful, competent, skillful, and painstaking foreman to manage, control, direct, and supervise the aforesaid work, in which the said Chas. W. Hammond was...