Kurtz v. Detroit, T. & I. R. Co.

• Decision Date: 01 April 1927
• Docket Number: No. 73,Jan. Term.,73
• Citation: 213 N.W. 169,238 Mich. 289
• Court: Michigan Supreme Court
• Parties: KURTZ v. DETROIT, T. & I. R. CO.

238 Mich. 289

213 N.W. 169

KURTZ

v.DETROIT, T. & I. R. CO.

No. 73, Jan. Term.

Supreme Court of Michigan.

April 1, 1927.

Error to Circuit Court, Monroe County; Jesse H. Root, Judge.

Action by Otto C. Kurtz, administrator of the estate of Edward J Gall, deceased, against the Detroit, Toledo & Ironton Railroad Company and another. Judgment for plaintiff against named defendant, and it brings error. Reversed without new trial.

Argued before the Entire Bench.Clifford B. Longley, Wallace R. Middleton, and E. E. Juntunen, all of Detroit, and Golden & Nadeau, of Monroe, for appellant.

William F. Haas, of Monroe, and Chas. A. Thatcher, and C. A. Meck, both of Toledo, Ohio, for appellee.

CLARK, J.

This is an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), for the averred negligent killing of plaintiff's decedent, Edward J. Gall, yardmaster of the yard of defendant Detroit, Toledo & Ironton Railroad Company at Delray. The declaration has separate counts on common-law negligence against the Pere Marquette Railway Company. Plaintiff was required to elect which action would be pursued and the election was against Detroit, Toledo & Ironton Railway Company, hereinafter called the defendant. Plaintiff had verdict and judgment. Defendant brings error.

Delray yard is the northern terminus of defendant's railroad, and is an interchange yard, where cars are delivered to other railroads. Defendant's tracks ended at or near West End avenue, which bounds the easterly limits of the yard. On either side, north and south, of the main line are a number of side tracks. On the day in question, June 22, 1923, defendant's employees were engaged in switching cars and in assembling them on the side tracks for delivery to other railroads. When deceased came on duty at 3 o'clock in the afternoon, the cars for the Pere Marquette had been collected and coupled, about 40 in number, on side track north 1. Near the middle of the string was a defective Pennsylvania car. It had end doors swinging outward. The doors were not closed. This car came into the yard that day about 1 o'clock in the afternoon on a train of defendant. While it was still upon the main line, and at 1:10 p. m., it was inspected by a car inspector of the Pere Marquette. He inspected that car and other cars because he ‘knew that those cars were supposed to be turned over to the Pere Marquette Railroad.'

The inspector testified that the doors were then open, and bent, a fastening broken-all caused by a broken bulkhead due to shifting of the load. He testified that he reported to Mr. Duncan, then yardmaster of defendant (whom deceased succeeded at 3 o'clock), that the car was in bad order, and that he, the inspector, attached to it a bad order card, meaning that the car had to be repaired before it could be moved. Mr. Duncan contradicted the inspector's testimony of report to him. To what extent the doors were then open is in dispute. That a bad order card was attached to the car is also disputed. That it was defective as stated is not disputed. Defendant's employees did not set out the car for repair. They switched it into the Pere Marquette train. It does not appear that the car was inspected further by or on behalf of the Pere Marquette before acceptance of the train. Usual and permitted practice in the yard was that the Pere Marquette, before accepting trains tendered to R. removed dangerously defective cars found therein, or required defendant to do so. The train was turned over to the Pere Marquette about 3 o'clock that day. Its engine came into the yard manned by its employees, and was attached to the west end of the train to push it out of defendant's yard and across West End avenue to a main line. A Pere Marquette brakeman was on top of a car at each end of the train. The Pere Marquette conductor was at a switch shanty near West End avenue to get a clearance order. A signal to go was given and relayed by the brakemen to the engineer. The engineer attempted to move the train, but the cars were bunched. He reversed and attempted to pull the cars apart to get slack. The train parted at the end of the defective Pennsylvania car toward the engine. The air hose breaking the moving cars and engine were stopped, automatically leaving a gap in the train about six feet wide. Deceased, defendant's yardmaster, standing near and observing the break, stepped between the cars, and turned the angle cock to prevent escape of air and to release the brakes. This done, it is said he remained for an instant between the cars. The brakes being released, the engine with the cars attached, without further signal, moved forward closing the gap. Deceased was caught between the open projecting door of the Pennsylvania car and the end of the moving car, and was killed instantly.

The evidence is to the effect that the Pere Marquette, by its crew and with an engine, came into the yard as a licensee, with the right and duty to take out its train. Its employees were subject to its orders. The switching in the yard was in charge of defendant. A duty of the yardmaster was to give information to Pere Marquette employees as to when and where trains for that road were to be found. There is no evidence of agreement for joint operation nor for joint inspection. On some occasions, when a heavy Pere Marquette train was to be moved from the yard, an engine of defendant had assisted. But on this day an engine of defendant did not assist. The movement was wholly in charge of Pere Marquette trainmen and enginemen. Three witnesses testifying made statements that an engine of the defendant was attached to the train at the time of the accident, but by way of correction and explanation it was shown that the witnesses made such statements on surmise, and that they had no knowledge that such was the fact. There was positive testimony that no engine of the defendant was then attached to the train. It is a rule of law that testimony by way of correction of a misstatement does not make an issue of fact. West v. Detroit Terminal R. Co., 229 Mich. 590, 201 N. W. 955.

A preponderance of evidence is to the effect that the Pennsylvania...