Holmberg v. Lake Shore & M. S. Ry. Co.

• Citation: 155 N.W. 504,188 Mich. 605
• Decision Date: 21 December 1915
• Docket Number: No. 450.,450.
• Court: Supreme Court of Michigan
• Parties: HOLMBERG v. LAKE SHORE & M. S. RY. CO.

188 Mich. 605
155 N.W. 504

HOLMBERG
v.
LAKE SHORE & M. S. RY. CO.

No. 450.

Supreme Court of Michigan.

Dec. 21, 1915.

Error to Circuit Court, Kent County; John S. McDonald, Judge.

Action by Carl O. Holmberg against the Lake Shore & Michigan Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Argued before BROOKE, C. J., and KUHN, MOORE, STONE, OSTRANDER, BIRD, and STEERE, JJ.

Brooke, C. J., and Ostrander, J., dissenting in part.

[155 N.W. 504]

Clapperton, Owen & Hatten, of Grand Rapids (Samuel H. Kelley, of Lansing, of counsel), for appellant.

Lombard, Hext & Washburn, of Grand Rapids, for appellee.

STEERE, J.

On June 18, 1913, shortly after 8 a. m., a loaded gravel train of 16 cars, hauled by a heavy freight engine, southbound from Grand Rapids to Three Rivers, running as ‘Extra 5761,’ met in a head-on collision a regular north-bound passenger train, No. 532, consisting of four cars and a passenger engine, on a reverse curve of defendant's road at the north yard in the city of Kalamazoo. The engineer and conductor of the passenger train were killed and several of the passengers injured. Plaintiff was engineer on the gravel, Extra 5761, and the only person injured on his train, his foot having been caught between the beams of the tank and engine as he was about to leave his cab and the lower part of his leg crushed, necessitating amputation about three inches below the knee. He brought this action in the circuit court of Kent county, under the federal Employers' Liability Act to recover damages for such injury, the negligence charged being that the passenger train was ahead of time and running at an excessive rate of speed, without a proper lookout being maintained. In the trial court he recovered a verdict and judgment for $8,000. A subsequent motion for a new trial, alleging, amongst other things, that the verdict was excessive and against the overwhelming weight of evidence, was denied.

Passenger train No. 532, going north on its regular run, was about 300 feet in length, and consisted of its engine, a mail car, baggage car, and two passenger coaches. It was what is classed in railroad operation as a ‘superior train,’ with schedule time and precedence over all other trains. By its schedule time it was due to leave the Kalamazoo central station at 8 o'clock. Its time at the north yard switch was 8:50; the collision occurred 720 feet north of the switch. It arrived at Kalamazoo that morning on time, 7:50, and a clearance card was given it by the train dispatcher to proceed on its run. The brakeman and fireman of the train testified that it backed out from the central station about one minute late, and as usual went round the ‘Y,’ crossing the tracks of two other railroads, stopping at one of them, and coming down on defendant's main line south of Main street, where it stopped and received orders from the operator, who testified it left that point at 8:04 and, as was his duty, he entered the time upon the train entry sheet, which he produced and verified. At the Michigan Central crossing, some distance north of Main street, the towerman at the intersection of the tracks entered its passing upon his train register as 8:05. The coroner who examined the dead body of the engineer of this train as it lay by the track after the accident found that his watch, with the crystal broken, was jammed and had stopped, as its hands showed, at 8:06. This evidence of the exact time of the movements

[155 N.W. 505]

of No. 532 before and when the accident occurred is contradicted by the unsupported testimony of plaintiff that just after the accident he looked at his watch and found the passenger train was three minutes ahead of time, or 8:03, although inferential support is claimed in the statement of Endres, his fireman, that they left the standard switch about a half mile north of the place of the accident, where they had stopped either ‘just before we stopped or just before we started; * * * it was a little before 8 o'clock’ by his watch. Plaintiff claims they left this point at 7:59.

Plaintiff was a man 40 years of age, experienced in railroading, familiar with the stations and tracks on the Kalamazoo division of defendant's...