Hathaway v. Michigan Cent. R. Co.
| Decision Date | 03 October 1883 |
| Court | Michigan Supreme Court |
| Parties | HATHAWAY v. MICHIGAN CENT. R. CO. |
The omission of a railroad company to warn an inexperienced brakeman of the specific danger of coupling cars that are furnished with double dead-woods does not make the company liable for an injury received by him in so doing, if the risk is such as to be manifest to any person, and if, on being employed, he was warned in general terms of the danger of coupling cars of different construction, and was told not to take any chances.
Error to Jackson.
Conely Maybury & Lucking, for plaintiff.
Gibson Parkinson & Ashley, Ashley Pond, and H. Russell, for defendant and appellant.
The plaintiff brings this suit against the Michigan Central Railroad Company for damages sustained by him while in the company's employment as a brakeman, alleging that while making coupling of cars at Niles, as directed by the company's agent, his arm was caught between the bumpers and crushed in such manner as to render amputation necessary and that the injury was caused by the negligence of the company in not informing the plaintiff of the dangerous position he was called upon to occupy, and the nature character, and action of the machinery used for the coupling and the particular dangers to be encountered in making the connection. The plaintiff obtained a judgment at the circuit for $9,000 damages, and the defendant brings error.
The record contains the substance of all the testimony and proceedings had at the circuit, and all the exceptions relate to the charge of the court as given, and to the refusals to charge. The plaintiff was reared in Jackson county, and was 24 years of age when he entered the service of the defendant. It is not questioned but that he is a man of ordinary understanding, and of full average intelligence. He had traveled some, but had no experience in railroading, except that he worked a few weeks in 1871 distributing spikes upon the Davenport & St. Paul Railroad, and in 1877 a few months in track-repairing on the M., K. & I. Railroad, and this experience, he says, did not bring him in contact with the construction of freight cars. He was received into the defendant's service as a brakeman, and entered upon the discharge of his duties on a freight train, his run being between Jackson and Michigan City. Plaintiff made his first two trips with Conductor Hulitt, who told him, when he came on his train, of the dangers incident to the business; to be careful in coupling, and to take no chances. He cautioned him in regard to the cars; told him defendant had cars of all makes and descriptions; and some had dead-woods and some had not; and he allowed him to make couplings on the second trip. Mr. Sullivan, the brakeman who was with him when he made his first trip, told him that braking was a dangerous business, and that coupling was a dangerous part of braking; to be careful in making couplings, and if the cars did not come back right to step out; that the cars were of different heights; and they sometimes used a crooked link in coupling; and watched him when he made his first couplings. The engineer, on his first trip, also cautioned the plaintiff, and told him there was much danger; to be careful in running over the cars, and look out for himself. Conductor Day also told plaintiff, on the trip he made with him, that all couplings were dangerous; to be careful; to look out for flat cars loaded with lumber or iron, as it projected over; that he must take care of himself in every way.
The company also, after he had made his first trip, presented him with a time-table which contained the rules or instructions of the company to its employes on trains, and directed them where they might find all information necessary in discharging their duties, and containing warnings as to special dangers; and these instructions plaintiff says he read before making his second trip. The plaintiff, aside from his own experience, learning, and observation, the evidence tended to show, was thus forewarned before the injury complained of occurred; indeed, to this extent the defendant's testimony is not denied. He had also made three round trips on the defendant's freight trains and made several couplings of the Michigan Central cars, and when injured was making his fourth trip, having been to Michigan City, and was on his return as far back as the city of Niles.
The plaintiff claims, and his testimony tended to show, that while at this place he was called upon by Conductor Sykes to make a coupling between two cars, known as the New York, Lake Erie & Western cars, which were being taken with others over the defendant's road, and that double dead-woods were used on said cars instead of single dead-woods, like those on defendant's cars; that he was entirely unacquainted with that kind of dead-woods used about the couplings; that he had never seen any of the kind before; that it was more dangerous making the coupling when the double dead-woods were used; that he had not been specially forewarned of this fact by the company; that he was called upon to make the coupling in the night; and that the omission of defendant to forewarn him of such increased danger was such negligence on the part of the defendant as to create a liability to the plaintiff in this action. It is conceded by the parties that the cars were of the same make and pattern as to dead-woods as the cars mentioned in the case of Smithson against defendant before the court, in 45 Mich. 212; [S.C. 7 N.W. 791.]
The cars he was coupling were cars belonging to and received from the New York, Lake Erie & Western Railway. At the ends were what are known as double dead-woods. A car of this construction has a horizontal timber at the end, with projecting blocks bolted to the timber, one on each side of the draw-bar, which extends a little beyond the faces of these blocks. In coupling the blocks come together and receive the blow of the cars. The coupling-pin is usually dropped through the draw-bar between the blocks from above. The defendant's cars are furnished with single dead-woods, and those of three or four other roads outside of the state which pass over the defendant's road have double dead-woods.
At the time the injury complained of occurred, it was not only the right and privilege of the defendant to transport the cars of the New York, Lake Erie & Western Railroad Company over its road across our state, but it was its duty to do so. By the General Laws of 1873, p. 99, "every corporation owning a road in use, shall, at reasonable times and for reasonable compensation, draw over the same the merchandise and cars of any other corporation."
The evidence in this case shows that cars with the double dead-woods had for a long time passed over the defendant's road, and that about one-sixth of the freight cars passing west were double dead-woods; that in three of the trains the plaintiff made his trips on, before he was hurt, there were some of this kind of cars; and that one-twentieth of all the double dead-woods that passed over the road were New York, Lake Erie & Western cars.
It is not claimed or pretended by the plaintiff that the cars attempted to be coupled by him or the dead-woods thereon or any part of the same were defective in their construction, unsound, or out of repair, or that they were not a part of the rolling stock then largely used by defendant in transporting property over its road; or that they were not proper cars for that purpose; or that any of the usual and customary means were not adopted and used by the defendant to guard against accidents to its employes in transporting said cars over its road, except the want of proper notice to him in making the coupling when he was injured. It is not claimed by plaintiff that with proper care said cars could not be coupled with safety, but that it was more dangerous coupling these than those belonging to the defendant, and of this fact plaintiff was not advised; that defendant should have instructed him and given him notice to that effect, and, failing so to do, it must be held accountable for the injury complained of.
The general rule that "when a person enters the service of a railroad company he assumes the risks and dangers incident thereto, and cannot demand compensation from his employer for accidental injury," is well settled in this state, and has frequently been applied in cases in this court. Davis v. Detroit & M.R. Co. 20 Mich. 105; Quincy Mining Co. v. Kitts, 42 Mich. 34; [[[S.C. 3 N.W. 240;] Mich. Cent. R. Co. v. Smithson, 45 Mich. 212; % ADS.C. 7 N.W. 791: Swoboda v. Ward, 40 Mich. 423.
It is also equally well settled by several decisions of this court that "the employer is charged with the duty of care to those in his service and must not subject them to risks by his own negligence." Mich. Cent. R. Co. v Smithson, 45 Mich. 212; [S.C. 7 N.W. 791;] Chicago & N.W. Ry. Co. v. Bayfield, 37 Mich. 205; Swoboda v. Ward, 40 Mich. 420. In the last case Mr. Justice MARSTON states the rule to be: "When the servant is to be sent into dangerous places or put to dangerous tasks, of the risks of which he is...
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