Howe v. Mich. Cent. R. Co.

Decision Date08 December 1926
Docket NumberNo. 23,April Term.,23
Citation236 Mich. 577,211 N.W. 111
PartiesHOWE v. MICHIGAN CENT. R. CO.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, Wayne County; Alfred J. Murphy, Judge.

Action by Ethel M. Howe, administratrix of the estate of Fred C. Howe, deceased, against the Michigan Central Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and rendered.

Argued before BIRD, SHARPE, SNOW, STEERE, FELLOWS, WIEST, and McDONALD, JJ. J. Walter Dohany, of Detroit (Frank E. Robson, of Detroit, of counsel), for appellant.

Bresnahan & Groefsema, of Detroit, for appellee.

SNOW, J.

For 14 years Fred C. Howe had been employed by the Michigan Central Railroad Company on its trains, either as fireman, brakeman, or conductor. December 30, 1923, he was working as rear brakeman on a 70-car through freight train, running from Jackson to Detroit on the east-bound main of a double track. The train made no stop after it left Jackson until it arrived at a point about two miles east of Dearborn, when one was made by the engineer because of a block signal ahead. It was night, and was dark, foggy, and rainy. It happened that the way car of the train, as it came to the stop, stood on the railroad bridge over the River Rouge. In it at the time were the rear brakeman, Howe, and Hillmer, the conductor of the train. It was the duty of Howe to immediatelu go back of the train, with flagman's signals, a sufficient distance to insure protection by placing two torpedoes, and, when necessary, also displaying lighted fuses.

As the train came to a stop the conductor left the car by the north front steps and proceeded along the tracks for observation. He had proceeded but a short distance when the train started, and he mounted by way car as it came along. On entering the car he discovered that Howe was not there. The last the conductor had seen him was just before he (the conductor) left the car. At that time Howe was standing by the rear door of the car, buttoning his coat preparatory to going out, with his two lighted lanterns, one white and one red, at his feet on the floor. next day about 8 o'clock in the forenoon. that, although immediately after he was discovered missing the train crew made search for him. He was found dead in the river the next day about 8 o'sclock in the forenoon.

The bridge on which the way car stopped is 118 feet long, 28 feet 4 3/4 inches wide, and 22 1/2 feet above the water. From the ball of the south rail of the east-bound track to the south edge of the bridge the distance is 4 feet 2 1/2 inches, and from the outside of the bottom step of the way car to the outermost edge of the bridge 24 7/8 inches. The space between the track and edge of the bridge is filled with broken stone ballast, held by the tracks on one side and by a steel band along the edge of the bridge on the other.

The Michigan Central Railroad Company was engaged in interstate commerce, as was the deceased as an employee of the company. The plaintiff, who is the wife of deceased, brings this action in a representative capacity for her husband's death, under what is commonly designated as the federal Employers' Liability Act, c. 149, 35 Stat. 65, as amended April 5, 1910, c. 143, 36 Stat. 291 (Comp. St. §§ 8657-8665), which statute in part (U. S. Comp. St. 8657) is as follows:

‘Every common carrier by railroad while engaging in commerce between any of the several states, * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative for the beneift of the surviving widow or husband and children of such employee; * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its * * * track, roadbed, works, * * * other equipment.’

From a judgment in her favor, defendant brings the case here on writ of error.

We have called attention thus far to sufficient of the facts for a general understanding of the case. Others, deemed essential, will be mentioned as we proceed.

The issue raises questions both of interest and importance, and in our investigation of them we are greatly aided by the exhaustive briefs filed by the attorneys for the respective parties. (1) Was the defendant guilty of negligence? (2) If so, was such negligence the proximate cause of the death of the deceased? (3) Is plaintiff, in any event, barred from recovery because of the doctrine of assumption of risk? These are the dominant questions, the answers to which must control the disposition of the case.

Negligence.-The bridge in question is modern and what is known as of ballast type. There are a number of them on the main line of the Michigan Central between Detroit and Jackson. They are all of the same general construction, level, no steel or false work, and with approximately the same thickness of crushed stone ballast. Plaintiff's decedent had passed over them many times, and knew of their uniformity and how they were built.

The declaration, as amended, will be regarded as sufficiently broad to charge the defendant with negligence in failing to provide a reasonably safe and sufficiently wide space between the south rail and the edge of the bridge to permit its necessary use by employees-that is, with negligently failing to provide the plaintiff with a safe place in which to perform his work.

It is conceded by both parties that the bridge was substantial, well constructed, and in a good state of repair. Therefore, defendant contends, it cannot be required to condemn a bridge without fault in its plan or structure and while it is in good repair and safe for the passage of trains; that it has a discretion as to the kind of bridges it will use and when and under what circumstances it will replace them while they are safe. Defendant is supported in its claim by the opinion of this court in Illick v. F. & P. M. Railroad Co., 67 Mich. 632, 35 N. W. 708, and it is urged that this case practically determines in favor of the defendant all questions of negligence in the present one.

It was there held that there was no evidence tending to show negligence on the part of the defendant. The negligence contended for by plaintiff was in maintaining an improperly constructed bridge, in that it should have been at least 14 feet between the trusses, whereas it was but 13 feet and 4 inches. See, also, Ragon v. Railway Co., 97 Mich. 265, 56 N. W. 612,37 Am. St. Rep. 336.

But plaintiff here claims, not that there was negligence in the manner of the construction of the bridge itself, nor that it was not wide enough, but that because of the setting of the double tracks thereon too far apart from center to center it cut off space that should have been left between the tracks and the edge of the bridge, thereby making it unsafe for the use that might possibly be required of it. It is practically conceded that the bridge, as a structure, was of modern design, well built, in good condition and repair, and similar to other railroad bridges all along the line. A civil engineer, produced as a witness by the plaintiff, testified relative to the rails on the bridge:

‘On all the bridges I measured the distance between the rail on the north side and the south side all varied, probably due to the alignment of tracks and from heat and cold. Tracks will move some, due to weather conditions, expansion and contraction, and to fast-moving trains passing over them at frequent intervals.

‘Q. So that you find these variances at various distances; that was not unusual at all on what is known as a ballast track? A. This is the first case I have ever observed.

‘Q. And from your experience you readily realize why those variances occur? A. Yes, sir.’

There were no railings on the bridge on either side. Neither are there on any of the other bridges. They are not, from an engineering stand, used or considered in the construction of railroad bridges. Notwithstanding plaintiff's claim to the contrary, we think it may be said, from the record, that if this bridge and the tracks thereon were faulty, so were all of defendant's bridges, and to rectify the fault it would be required to adopt an entirely new style of bridge engineering and construction all along its route. The existence of a number of spiles, which the evidence disclosed as projecting from the water beneath the bridge, can by no possible conception of the case be considered as evidence of negligence of the defendant. We are not at all impressed that any negligence on the part of the defendant was established.

Proximate Cause.-But, assuming negligence (which we do not concede), we find an utter lack of evidence sufficient to sustain the contention that such negligence was in fact the proximate cause of decedent's death.

Counsel argue that the logical and reasonable inference as to the cause of his death is that he alighted from the right-hand rear step of the way car, where there was available to him about 24 7/8 inches of landing space; that this was not sufficient, and as he stepped from the car he fell over the edge of the bridge and struck one of a number of spiles that had been permitted to remain in and project out of the water, and that he was thereby rendered unconscious and suffocated in the water without a struggle. That he struck one of the spiles, counsel claim, is evidenced by the fact that when his body was found it had a lifelike appearance. A physician who examined it stated there was no discoloration, no bruises on the scalp, the skull was intact, air was in the lungs, there was no evidence of hemorrhage from the nose, ears or mouth, and no discoloration such as sets in very shortly after death-all of which it is claimed tended to show that there must have been some external blow or a similar condition to render the deceased...

To continue reading

Request your trial
21 cases
  • Skinner v. Square D Co.
    • United States
    • Michigan Supreme Court
    • May 17, 1994
    ...rests with the complaining party, and no presumption of it is created by the mere fact of an accident. [Howe v. Michigan C.R. Co., 236 Mich. 577, 583-584, 211 N.W. 111 (1926), cert. den. 274 U.S. 738, 47 S.Ct. 576, 71 L.Ed. 1317 To be adequate, a plaintiff's circumstantial proof must facili......
  • Caswell v. Air Products and Chemicals, Inc.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • July 30, 1999
    ...rests with the complaining party, and no presumption of it is created by the mere fact of an accident. [Howe v. Michigan Cent R. Co., 236 Mich. 577, 583-584, 211 N.W. 111 (1926), den. 274 U.S. 738, 47 S.Ct. 576, 71 L.Ed. 1317 (1927).] To be adequate, a plaintiff's circumstantial proof must ......
  • Indiana Lumbermens Mut. Ins. Co. v. Matthew Stores, Inc.
    • United States
    • Michigan Supreme Court
    • September 4, 1957
    ...United Railway, 206 Mich. 545, 173 N.W. 360, 5 A.L.R. 1333; Fuller v. Magatti, 231 Mich. 213, 203 N.W. 868; Howe v. Michigan Central Railroad Co., 236 Mich. 577, 211 N.W. 111; Heppenstall Steel Co. v. Wabash Railway Co., 242 Mich. 464, 219 N.W. 717; Wilkins v. Bradford, 247 Mich. 157, 225 N......
  • Miller v. Western Pac. R. Co.
    • United States
    • Utah Supreme Court
    • January 2, 1929
    ... ... Laub v. San Pedro, L. A. & S. L. R. Co., 47 ... Utah 155, 152 P. 467; New York Cent. & St. L. R. Co ... v. McDougall (C. C. A.) 15 F.2d 283; Delaware, ... L. & W. R. Co. v. Tomasco ... 42 Minn. 87, 43 N.W. 968; Butler v. Frazee, ... 211 U.S. 459, 29 S.Ct. 136, 53 L.Ed. 281; Howe v ... Michigan Cent. R. Co., 236 Mich. 577, 211 N.W. 111, ... N. W. 111; Louisville & N. R. Co ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT