Lellis v. Michigan Cent. R. Co.

• Decision Date: 15 May 1900
• Citation: 124 Mich. 37,82 N.W. 828
• Court: Michigan Supreme Court
• Parties: LELLIS v. MICHIGAN CENT. R. CO. et al.

82 N.W. 828

124 Mich. 37

LELLIS v. MICHIGAN CENT. R. CO. et al.

Supreme Court of Michigan

May 15, 1900

Error to circuit court, Shiawassee county; Edward D. Kinne, Judge.

Action by Cecelia R. Lellis, administratrix, against the Michigan Central Railroad Company and another for the death of plaintiff's intestate. Judgment for defendants, and plaintiff brings error. Affirmed.

Lehman Bros. & Stivers (Navin & Sheahan, of counsel), for appellant.

Lawrence & Butterfield, for appellee Michigan Cent. R. Co.

T. W Whitney (Alex L. Smith, of counsel), for appellee Ann Arbor R. Co.

MOORE J.

Stephen Lellis, plaintiff's intestate, was a switchman at work in the yards of the Michigan Central Railroad Company in Detroit. A car load of timber had been unloaded at Cadillac Mich., upon a flat car. The Ann Arbor Railroad Company brought this car to Ann Arbor, where it was transferred to the Michigan Central Railroad, and conveyed by it to Detroit. There were pockets on the sides of the flat car, 4 inches by 4 inches in size, into which to put stakes to hold the load in place. It is claimed the persons loading the car used for stakes 2X4 scantling, joining the tops together by nailing a strip of board thereto. During the switching of the car in the yard at Detroit one or more of these stakes gave way. Some of the timbers fell upon Mr. Lellis, who received injuries from which he soon thereafter died. His widow was appointed administratrix, and brought this suit. The circuit judge directed a verdict in favor of the defendants. The case is brought here by writ of error.

It is the claim of the defendants that the stakes are not part of the equipment of the car, but are part of the load. One witness so swore. It is also claimed that it is a matter of common knowledge upon the part of those at all familiar with the loading and shipping of lumber and timber upon flat cars in this state that the stakes are no part of the car, but the stakes are furnished by the shipper, and when the timber or lumber is unloaded the stakes are not returned with the empty flat car, but a new set of stakes is provided each time the car is loaded. It is said: The stakes being regarded as a part of the load, the company was not liable. The Michigan Central Railroad employed an inspector whose duty it was to inspect the cars upon their arrival at the junction before the cars passed into the switching yard. This inspector, Mr. Fenwick, was on duty when this car arrived. It was the duty of the inspector, if he found a car was not in a condition to go forward safely, to mark it 'Rejected,' and send it to the transfer house. A record is kept of the rejected cars, but no record is kept of those which are not rejected. The record did not show that this car was marked, 'Rejected.' If the inspection was faulty, and would have revealed the defect if the inspector was not negligent, the negligence of the inspector was the negligence of a fellow servant, and the plaintiff cannot recover,--citing Smith v. Potter, 46 Mich. 258, 9 N.W. 273; Dewey v. Railway Co., 97 Mich. 329, 52 N.W. 942, 56 N.W. 756, 22 L. R. A. 292; Jarman v. Railway Co., 98 Mich. 135, 57 N.W. 32.

The defendant the Ann Arbor Railroad Company is not liable, under the authority of Fowles v. Briggs, 116 Mich. 425, 74 N.W. 1046, 40 L. R. A. 528. The question whether it was the duty of that company to furnish its cars with stakes is not necessarily in the case, and upon it, therefore, we express no opinion.

If the defendant the Michigan Central Railroad Company is liable, it must be because it failed to provide inspection which would have disclosed to the inspector the dangerous condition of this load. It is established by the testimony that this company did provide a competent inspector. He either failed to make any inspection, or made a faulty one. In either case under the decisions of this court, the defendant is relieved from any liability. This inspector and Mr. Lellis, the switchman, were fellow servants engaged in the same common employment. This is not a case involving the duty to furnish safe machinery, and to see that it is kept in proper repair. It is a case involving the duty of a railroad company which is daily receiving, as it is bound to do, cars from other companies for immediate transshipment over its own road. Its duty towards its employ�s is to provide a competent inspector to inspect these cars when so received, and to determine whether they are in proper condition for transshipment,--this for the reason, as is well known, that cars are apt to become injured while being transported. Immediate supervision in such cases by 'either the ultimate or representative principal' is impossible. When a company has employed such an inspector, it has performed its full duty. The rule is a just and reasonable one. Employ�s understand this, and contract with reference to it. They know that the master is not liable where it has employed competent servants to perform the work of the same common employment. The rule is so well stated by the late Justice Campbell in Smith v. Potter, 46 Mich. 258, 9 N.W. 273, that I quote it: 'In such a business as requires the employment of a multitude of persons, beyond the possible constant supervision of either the ultimate or representative principal, there can be no negligence, without the failure to use such precaution in choosing agents and guarding against perils as diligent prudence and foresight require. When the principal has done all that can be reasonably required of him to prevent risks to his servants, he has done all that he owes them. In the present case he appears, beyond dispute, to have done all this; and, if the inspectors committed an error, or were guilty of...