Karrer v. Detroit, G.H. & M. Ry. Co.

• Decision Date: 11 October 1889
• Citation: 43 N.W. 370,76 Mich. 400
• Parties: KARRER v. DETROIT, G. H. & M. RY. CO.
• Court: Michigan Supreme Court

43 N.W. 370

76 Mich. 400

KARRER v. DETROIT, G. H. & M. RY. CO.

Supreme Court of Michigan

October 11, 1889

Exceptions from circuit court, Shiawassee county.

Action by Delbert D. Karrer against the Detroit, Grand Haven &amp Milwaukee Railway Company for damages for personal injuries. Judgment for plaintiff, and defendant excepts.

Matthew Bush, Jr., (Lyon & Hackleman, of counsel,) for plaintiff.

E W. Meddaugh, for defendant.

CAMPBELL J.

Plaintiff was an experienced head brakeman on a freight train on defendant's road. On February 1, 1887, his train arrived at Holly, late in the afternoon, where he was directed to take a car standing on a side track, and connect it with his train. The engine was moved to the side track, and backed under his direction, and subject to his orders, so as to bring one of the cars near the one to be attached. He put a link in the draw-bar of the car in motion, and walked back with it towards the standing car. While attempting to make the coupling his fingers were crushed. He claims it was the fault of the defendant, because of a defective draw-bar in the standing car. The cause of grievance stated in the declaration is as follows: "The defect complained of consisted in that the draw-bar and its appliances had become so old and worn out by long use without repairs that such draw-bar dropped, and hung down about six inches lower than where it would be if in a proper state of repair, and in its proper position. That such defect of said draw-bar and its appliances was obvious and manifest, and could have been readily seen by defendant had it taken the trouble to have such car properly inspected, which it had not, or had it used reasonable care and diligence in the premises. That, owing to the darkness and snow, plaintiff could not and did not see the condition of said draw-bar as he approached it, and did not realize its condition until he was injured as aforesaid. That the draw-bar of the other car-the one attached to the train, and which contained the coupling-link taken hold of by plaintiff-was in good condition. That the cars to be coupled were of equal height, and the draw-bars to them, had they been in good condition, would have been upon a level with each other; but, owing to the bad and defective condition of the draw-bar and its appliances of the car the plaintiff was trying to couple to the train, the draw-bar of such car was much lower than that of the car to which it was to be attached, and when they came together the upper projecting edge of the defective draw-bar, meeting the lower edge of the draw-bar to the other car, glanced upward and inward, catching and crushing plaintiff's fingers, as aforesaid," etc.

The case on the trial was peculiar in this: that every other witness testified that the draw-bar complained of was not down or defective; and several witnesses agree that plaintiff stated almost immediately after the accident that no one was to blame but himself, and that the trouble arose from his glove sticking to the link, and his foot slipping. But while a jury may have the power to disregard testimony which agrees and believe what is contradicted, the verdict in the present case is directly against the charge of the court, and is not creditable to an intelligent jury. We are more concerned, however, with whether any case was made out, and whether any should have been left to the jury. The plaintiff's testimony for himself was all that was put in by him. According to that he was head brakeman, and doing the switching for his train. While at the depot he was told to hitch onto the car in question, which was on a side track and which he says he never examined, and never saw before, or since, to his knowledge. He does not swear positively what kind of a car it was, but thinks it was a peddler car. "The order was to lift a car to take to Fenton; and, if that was the case, it would be what we call a 'local worker.' I wouldn't be positive as to that." When told to hitch on he was probably from 25 to 30 rods from the car. "I uncoupled the engine, hung on to one car, and went to the west switch, to back into this side track where these cars were, with the moving train." He first...