Illick v. Flint & P.M.R. Co.

• Decision Date: 05 January 1888
• Parties: ILLICK v. FLINT & P.M.R. CO.
• Court: Michigan Supreme Court

35 N.W. 708

67 Mich. 632

ILLICK v. FLINT & P.M.R. CO.

Supreme Court of Michigan

January 5, 1888

Error to circuit court, Wayne county.

The plaintiff, Henry S. Illick, administrator of the estate of Frederick J. Illick, deceased, brought this action against the defendants, the Flint & Pere Marquette Railroad Company for the negligent killing of his deceased. The circuit judge instructed the jury to render a verdict for defendant. Plaintiff brings error.

F.A. Baker, for appellant.

Wisner & Draper and H.M. Campbell, for appellee.

SHERWOOD J.

The plaintiff's intestate was a brakeman on the defendant's cars, and, as plaintiff claims, was killed through the negligence of the company in constructing and maintaining an improper and dangerous railroad bridge on the line of its road near Chippewa station, in the county of Osceola. It is for the killing of young Illick, by reason of such negligence on the part of the defendant, this suit is brought, and sought to be maintained. The only wrong counted upon in the plaintiff's declaration is that the defendant was negligent in maintaining an improperly constructed bridge. The only defect claimed in this construction is that the bridge should have been made wider than it was; that ordinary care and good railroading required this; that the bridge was but 13 feet and 4 inches wide between the trusses, which were 10 feet high, whereas it should have been at least 14 feet between them. The case was tried in the Wayne circuit court by jury and at the close of the trial the circuit judge instructed the jury that the peril which overtook the plaintiff, and caused his death, "was one of the accidents incident to his employment," and directed the verdict for the defendant. The plaintiff asks a review of the case in this court.

The main facts in the case were undisputed. The bridge at Chippewa station was built about nine years ago and there is no question but that it was well and strongly built, and at the time of the accident was sound and in good repair, and that no accident of the kind had ever occurred there before; that the track of the road was in the center of the bridge; that the car upon which the deceased was riding and was injured was a box freight car; that at the time of the accident he was climbing up the side of the car upon a ladder, for the purpose of setting the brakes, which were worked from the top of the car; that the train was approaching the bridge at the time the conductor signaled for brakes; that the plaintiff, who was standing upon a platform car next to the box car at the time, immediately sprang for the brakes, caught the round of the ladder on the side, and near the end of the box car, and while swinging himself around the corner of which to go up the ladder, and in his effort to reach the ladder, he threw his body out so far as to come in contact with the bridge as the car reached it, and he was struck with such force as to throw him from the ladder to the track, where he was run over and killed. The testimony also shows that, at the time the brakeman started for the ladder, the conductor of the train stood near him, and as the brakeman grabbed the ladder upon the side of the box car, and was swinging himself around to go up, the conductor made an effort to stop him, and "hallooed to him to look out for the bridge." The brakeman apparently did not hear the conductor, or, if he did, the warning was not heeded. The ladders on the defendant's box cars are on the side, and near the end of them. The ends are provided with a handle which the brakeman, on leaving a flat car to go up on the box car, lays hold of, and then, by swinging himself around the corner of the car, is able to reach the ladder with his foot. The ladder consists of iron bars extending out from the side from three to four inches; upon the roof, when reached, is a handle to assist the brakeman in ascending and descending. At the time of the accident the brakeman had been in the employ of the company about four months, and, when he was injured, he had been braking for the defendant over 100 days; passing over the bridge twice a day during that time. The bridge is about 35 rods east of the station, and in sight from the same. Benjamin Douglass, a bridge engineer, and an expert in the business, was sworn and examined on the part of the plaintiff, and testified that he had been employed in the Detroit Bridge & Iron Works; that he is now in the employ of the Michigan Central Railroad Company, in the chief engineer's office, and is engaged in getting up plans and specifications, and examining plans; that the standard width of railroad bridges which have trusses at the sides is, at the present time, on the Michigan Central, fourteen feet in the clear between the trusses; that "fourteen feet is almost universal. You will find narrower bridges. A great many roads have narrower bridges,--a few narrower ones; but they are older bridges;" that the Michigan has three narrower than fourteen feet, but he does not know of any built narrower in the present state of the art; that his knowledge of the standard width of bridges in Michigan has been acquired within the last four years, and he cannot say what the width was of the Howe truss railroad bridge in Michigan five or seven years ago; that there are seven bridges crossing the Michigan Central between Detroit and Grand Trunk Junction. Five of them have been built five years. Five are supported by posts, and two not. That the narrowest one between the posts is 12 feet, and another 12 feet 4 inches. Mr. Walhaufter, who was in the engineering department of the Detroit, Grand Haven & Milwaukee Railroad, testified that he had been in the employment of that company over seven years, and that they make the truss bridges on that road about fourteen and a half feet wide, but that there are bridges on the road narrower than that; that the one at Greenville is but thirteen feet and three inches at the end. Mr. Colburn, who is secretary and treasurer of the Detroit Bridge & Iron Works, and has been connected with the company since 1883, testified that the usual width of iron bridges in the clear, to-day, is fourteen feet or more; that, where there is a truss on each side of the bridge, "railroad companies fix their own dimensions, in their specifications that we are called upon to build;"...