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

• Citation: 128 Mich. 61,87 N.W. 136
• Parties: JARVIS v. FLINT & P. M. R. CO.
• Decision Date: 19 July 1901
• Court: Michigan Supreme Court

87 N.W. 136

128 Mich. 61

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

Supreme Court of Michigan

July 19, 1901

Error to circuit court, Saginaw county; Emmet L. Beach, Judge.

Action by William Jarvis against the Flint & Pere Marquette Railroad Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Benton Hanchett, for appellant.

William F. Denfeld (Jas. H. Davitt, of counsel), for appellee.

LONG J.

This action is brought to recover for injuries received by the plaintiff, a brakeman, while engaged in uncoupling cars on defendant's road at Flint on the evening of March 13 1899. Plaintiff was about 30 years of age, and had had 10 years' experience as a brakeman before going into defendant's employ. He commenced work for the defendant about the middle of December, 1898, and worked continuously on the road between Saginaw and Plymouth, going out from Saginaw one day, and returning the next day, and generally on the return trip did switching where the accident occurred. He was the head brakeman, and the train was under his control. At the place where the accident occurred the main track of the railroad extends north and south. On the east side of the main track is a side track running parallel with it. On the main track are two switches, from 25 to 28 feet apart. One leads to the north, connecting with the side track; the other leads to the south, also connecting with the side track. In the train upon which the plaintiff was working five cars were to be taken out and run over the south switch, and placed upon the side track. These cars were uncoupled from the train, leaving the other cars, forming the rear of the train with the caboose, on the main track south of the south switch. The train, with the five cars which were to be cut off, moved forward north of the north switch, and then was backed down to go over the two switches, in order to leave the five cars on the side track south of the south switch. The conductor and the plaintiff were standing about a car's length north of the north switch, on the east side of the track (that is, on the right-hand side of the train, looking towards the engine), and, as the train moved back to where they were, the conductor pointed out to the plaintiff the place in the train--between what cars of the train--the uncoupling was to be made. The plaintiff proceeded to do the uncoupling by going between the cars while they were moving at a speed of four or five miles an hour, and in doing the work he was run over by the cars and injured. His statement as to the manner of the injury is that, when the conductor pointed out the place in the train at which the uncoupling was to be made, he was about a car length north of the north switch; that he immediately attempted to pull the pin and make the uncoupling, and in doing that ran along on the outside of the rail until near the north switch; then went inside, and got onto the brake beam, and rode on it, trying to pull the pin, until he was past the north switch; that he then got down onto the ground between the cars, and ran along at a slow trot between the rails, trying with his right hand to pull the pin, holding his lantern in his left hand, down near the pin; that the night was dark; that the two cars between which he was going were about three feet apart; that the bottom of the cars was about as high as his thigh; that just before reaching the south switch he got the pin out, and went to go from between the cars, and stepped his left foot into a hole beside the east rail, said hole being between the cars, and stumbled that he tried to catch onto something upon the car ahead of him, but could not do so, and fell across the center of the track, and was injured so he lost one foot and one hand, and was badly hurt. It appears, further, from his testimony that he did not see the hole into which he stepped, and that he is unable to locate it definitely, except that he says it was beside the east rail between the switches, and was between the cars; that his feet went down into a hole when he stumbled; that this hole was 12 to 14 inches outside the rail of the main track. Mr. Frank E. Penny was a brakeman on the same train that night. He testified that he found the plaintiff after the accident a few ties north of the south switch; that he was a few ties--maybe a tie or two--north of the switch; that he noticed the condition of the tracks; that he found cinders between the north and south switch; that it looked to him as if sectionmen had been working on them; that they were excavating out there to a certain extent,--that is, north of the south switch; he did not know how many ties, but, anyway, six or seven or eight. Conductor McDowell testified upon this point that he saw the plaintiff stumble possibly 20 feet south of the north switch, not south of the south switch; that plaintiff was between the two switches.

The defendant introduced testimony tending to show that there were no piles of cinders there, and that the only excavation or hole on the main track was at the switch, where it was necessary to have a trench for the purpose of drainage; that the dry cinders were cleaned out from between the ties so that the switch could be moved. It is undisputed that it was necessary to maintain this condition between the ties at the place where the south switch was located, so that the bars of the switch could move backward and forward between the ties; that the unfilled place between the east ends of the same ties and the trench to the east from those ties was necessary for the drainage of the switch; and that these conditions were continuous.

The cause of the accident, as alleged in the first count of the declaration, was a hole or rut into which the plaintiff stepped, as follows: 'At a point, to wit, 300 feet south of where Hursley street, in the city of Flint, crosses the main track of said company, and at the switch located at that point on said main track, where it became necessary for the plaintiff to uncouple said cars, and along the outside and next to the east rail of the main track of said switch, located as aforesaid, there existed a deep hole or rut, and piles of dirt and cinders at said point, and the same had existed a long time previous thereto, and plaintiff did not see the same; and, as the cars were uncoupled by him, plaintiff stepped out from between the cars so uncoupled, and into the hole, along the outside and under the east rail at the point aforesaid.' The second count states: 'Said defendant carelessly and negligently allowed its road to be and remain out of repair for a long time, to wit, for a period of a year prior to the happening of the injury herein complained of, in that it allowed a large hole or rut into which the plaintiff stepped, and piles of dirt and cinders, as set out in the first count, to be and remain close up to the outside of the rails, and between the rails of said main track, for said period. On the 13th day of March, when it became necessary to place said freight train of cars on the side track as aforesaid, it became necessary for said plaintiff to go between two of said cars on said freight train to uncouple the same while in motion; and just as said plaintiff had uncoupled said cars from said train he stepped out from between them into said hole, close up to the outside of the east rail of said main track, and in the bed of said road, which was about six or eight inches in depth, and into which hole he stumbled, and fell across the main track, just where the side track connects with said main track.'

The court in its charge to the jury, after stating the action of the plaintiff in going between the cars at the direction of the conductor, said: 'He claims that the hole he stepped into was a short distance north of the south switch. It is further claimed by plaintiff that there was a pile of cinders, dirt, gravel, or snow along the outside of the east rail of the track, and within a short distance of such east rail. * * * It is further claimed by the plaintiff that the cinders or ballast was taken from between the railroad ties just north of the south switch to the depth of three or four inches; that the ties at that point were one foot apart, and in some places not that distance, but that they were far enough apart so that a man's foot could be caught between the ties; that these were the conditions as they existed on the main track. The plaintiff's claim is that he did not consider it dangerous to...