Jolly v. Detroit, L. & N.R. Co.

• Decision Date: 27 October 1892
• Citation: 53 N.W. 526,93 Mich. 370
• Parties: JOLLY v. DETROIT, L. & N. R. CO.
• Court: Michigan Supreme Court

53 N.W. 526

93 Mich. 370

JOLLY v. DETROIT, L. & N. R. CO.

Supreme Court of Michigan

October 27, 1892

Error to circuit court, Livingston county; ROLLIN H. PERSON, Judge.

Suit by George W. Jolly against the Detroit, Lansing & Northern Railroad Company to recover damages for injuries received by him. Verdict for defendant. Plaintiff appeals. Affirmed.

W. H. H. Russell, for appellant.

R A. Montgomery, for appellee.

GRANT J.

Plaintiff brought this suit to recover damages for an injury to himself, claimed to have been caused by the negligence of the defendant. At the close of the plaintiff's testimony, the court directed a verdict for the defendant upon the ground that the plaintiff had not made out a cause of action. Plaintiff was foreman of section 9 of the defendant's road, and at the time of the accident had been so employed for 13 years. He continued in their employment in the same capacity for three years afterwards. It was his duty, in connection with other trackmen, who were under his control, to go over the section in the morning, and inspect it. For this purpose the ordinary hand car was furnished by the defendant. When going through cuts and similar places it is the custom for part of the workmen on the hand car to face one way, and part the other. This is to enable the men to watch for trains in each direction, and to stop in time to remove the hand car, and avoid danger. This course is prompted by common prudence. Time cards of regular trains were furnished these section men, with rules printed thereon for their guidance. One of these rules read as follows: "No notice whatever will in any case be given of the passage of extra trains, and trackmen will govern themselves accordingly." This rule had been in force during the entire period of plaintiff's employment, and he was perfectly familiar with it. The cut near which the accident happened was of the average depth of 16 feet, and ran in a curve somewhat in the shape of the letter "S," with a down grade to the east. Plaintiff started out about 7 o'clock A. M., alone, to make the required inspection. He set the men who were under him at work in the yard at Brighton. The only reason given for going alone was, "We were short of help." No rule of the company is shown requiring him to go alone, and no superior officer directed him to do so. After setting his men to work, he went to the baggage room, and took a railroad tricycle, which was the private property of the local agent, Mr. Surtes, who had told him that he might take it when he wanted it. Mr. Surtes was absent. Plaintiff asked the baggage man if he knew of any extra trains on the road, to which he replied that he did not know; he was not there that night. Plaintiff went east upon the tricycle. He met the passenger train going west. After its passage, he replaced the tricycle, and proceeded east. From this place to the place of the accident there are nearly 25 telegraph poles. He stopped at the thirteenth pole, to listen for a train, but heard none. He stopped and listened again at the eighteenth pole, but heard no train. He then proceeded without stopping, and was overtaken by an extra passenger train near the twenty-fifth pole, and was thrown from the track. He did...