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

• Citation: 49 Mich. 573,14 N.W. 551
• Parties: JONES v. LAKE SHORE & M.S. RY. CO.
• Decision Date: 10 January 1883
• Court: Michigan Supreme Court

14 N.W. 551

49 Mich. 573

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

Supreme Court of Michigan

January 10, 1883

In an action by a brakeman against the railway company for an injury received while doing dangerous work for which he had not been hired, he can show what he said on being ordered to perform it, and that he protested against the requirement.

A party can always show by his own testimony that he did not enter into an agreement relied on against him, or voluntarily enter upon the performance of work which had been imposed upon him but for which he had not been engaged; and he may show this by testimony of what he said at the time he was directed to do such work.

In an action by a brakeman against his employer for injuries received while engaged in more dangerous work than that for which he had been hired, which he had been required to do, it is proper to allow a competent witness to show what the actual duties of a brakeman were in practice, in order to find how the additional duties differed therefrom. But where the witness himself was hired as train baggageman, and, like plaintiff, had been ordered to take part in the extra work, a question as to whether, in his opinion, the order called him out of the line of his duty was immaterial.

Where a railway employe is injured while in the performance of work to which he was wrongfully assigned and which he had never agreed to do, he is entitled to recover damages from the railroad company.

Where a brakeman, on going into the employment of a railroad company signs a contract binding him to obey all orders, rules, and regulations, but in which the general language applies equally to all classes of employes, the agreement to obey all orders must be construed to apply to all which are issued to him in the line of duty in which he is employed; and it does not empower the company to assign him to other duties wholly disconnected therewith and differing therefrom. And while the clause binding him to use care and caution applies to anything he may undertake to do, it is for the jury to decide whether he has violated it.

Error to Lenawee.

B.F. Graves, for plaintiff.

Millard Weaver & Weaver, Oscar G. Getzendanner, and Ashley Pond, for defendant and appellant.

MARSTON J.

The following short but clear statement of the facts in this case, and of the plaintiff's declaration, is taken from the brief of counsel for the defendant.

On the twelfth day of April, 1881, the plaintiff was seriously injured, in coupling cars, at Monroe, in this state, and this action is brought to recover for such injury. He entered into the employ of the defendant about the twenty-fourth day of June, 1880, as brakeman, and was employed as such upon a passenger train exclusively, until the early part of February, 1881. His run was from Adrian to Jackson and return, and from Adrian to Monroe and return; the several crews taking turns in such a way as to bring plaintiff's run to Monroe every third week. Each crew was made up of the engineer, fireman, baggageman, and one brakeman. The trip to Monroe was made in the morning, arriving there soon after 9 o'clock. At Monroe the crew had nothing to do, (except the care of the trains and lamps, which took but little time,) until about 8 o'clock in the evening, when they returned with the train to Adrian. The train going down in the morning was called No. 2, and the evening train No. 9. On the second day of February, Division Superintendent Charlesworth issued the following order: "Agent, Monroe 'Until further notice, the engineer and crew running Nos. 2 and 9, Monroe Branch, will do the switching at that station. Show this to conductor and engineer, which will be an order for them to do it.' T.J.C."

This order was occasioned by a change in the running of freight trains through to Detroit without stop at Monroe, thus leaving no freight crews at Monroe to do the yard work. After this order came out, the plaintiff, and the crew with which he was connected, was first at Monroe, on Monday, the eighth day of February. His crew consisted of Charles Luce, engineer; Joseph Nopper, fireman; Isaac Gifford, baggageman; and himself as brakeman. The baggageman ran only between Adrian and Monroe, and was with all the crews. Upon arriving at Monroe, on the morning of the eighth of February, the plaintiff was shown the order of the superintendent requiring the crews to do yard work. He made some objection, but finally went to work with the rest of the crew, and so continued, every third week until he was hurt on the twelfth of April, while coupling a Flint & Pere Marquette car loaded with lumber to an empty box car. This lumber car was so loaded that the lumber projected over the end and the plaintiff was hit by the projecting lumber, knocked against the ladder of the box car, and thrown down, and, it is claimed, permanently injured, physically and mentally. Before this hurt he was a young man of full average mental capacity.

The plaintiff recovered and the defendant assigns error as follows: First. That the court erred in allowing the plaintiff to state what he said when the order of the superintendent Charlesworth was presented to him requiring him to do yard work at Monroe. We are of opinion that it was proper to allow the plaintiff to prove that, at the time this order was first presented to him, he objected to going into the yard. The theory of the plaintiff's case was, that he had been employed as a brakeman upon a passenger train, and within the scope of such employment he could not be called upon, or rightfully required to perform services of a different character, no more dangerous. And he had...