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

• Decision Date: 12 February 1895
• Citation: 104 Mich. 80,62 N.W. 137
• Parties: LORANGER v. LAKE SHORE & M. S. RY. CO.
• Court: Michigan Supreme Court

62 N.W. 137

104 Mich. 80

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

Supreme Court of Michigan

February 12, 1895

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

Action by James Loranger against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, a new trial being refused, defendant brings error. Reversed, and no new trial granted.

Where a brakeman, in violation of his contract and the company's rules, ran in front of an engine tender moving on a track which the brakeman had just passed over, in order to straighten a coupling link thereon, and in stepping sideways in front of the tender, to keep out of its way, stumbled over a pile of ashes between the rails, which he could have seen had he looked, and was injured, he was guilty of contributory negligence, though it was the custom for brakemen to perform such an act in a similar manner.

The accident which resulted in plaintiff's injury occurred July 31, 1879, at 5 o'clock p. m. The train crew consisted of five men,-conductor, engineer fireman, and two brakemen,-plaintiff being the head brakeman. The freight train in charge of the crew had been engaged during the day in distributing steel rails. Just before the accident, the engine and tender were standing upon one track and the rest of the train upon the main track. Plaintiff was directed to go over upon what was called the "pier track," and couple some cars to the engine for the purpose of putting them into their train going west. It was necessary to turn a switch in order to get the engine and tender upon the pier track. Plaintiff testified that he was directed by the conductor to proceed in haste, and threw the switch, there being no switchman at hand to do the work. He hurried along the track; turned the switch; the engine passed over the switch, and backed upon the pier track. The engine and tender were backing up "as fast as a fast walk." Plaintiff ran past the engine and tender "on a dog trot," and when within about two car lengths of the cars to be coupled stepped inside the rail in advance of the tender for the purpose of reversing a crooked link, so as to be able to make the coupling when the standing cars were reached. He did not signal to the engineer to slacken speed and while he was walking sideways, in his attempt to turn the link, he stubbed his toe against a pile of fresh ashes and cinders lying between the rails, fell, and was seriously injured. While other grounds of negligence are alleged in the declaration, none were insisted upon at the trial, except the pile of cinders and ashes, and upon this alone the recovery was based. Plaintiff had just passed over the track on his way to the switch, but did not notice it. He says he glanced at it as he fell, and thought it was five or six inches high filling the entire space between the rails. He gave the only evidence on his part as to the manner of the accident. The contention of the plaintiff is (1) that he was not furnished a safe place to work in by reason of this pile of cinders and ashes, and that its being there was the negligence of the defendant; (2) that it was good and safe railroading and customary for brakemen to go in front of the cars for the purpose for which he went while they were moving "as fast as a fast walk"; and (3) that in so doing he was in the exercise of due care. The contention of the defendant is (1) that in so doing he violated its rules and his written contract of service; (2) that the ashes and cinders, if any were there, were placed there by some fireman or engineer, and that, if they were there, the duty to remove them belonged to the section crew, and that all these employ�s were fellow servants, for whose acts the defendant is not liable; and (3) that the plaintiff was guilty of negligence.

For a full understanding of the case a further statement of facts may be important. Plaintiff was a man of experience in, and thoroughly familiar with, the business in which he was engaged. The movements of the engine were entirely under his control, and the engineer was bound to obey his orders. The engineer was looking out upon one side and the fireman on the other of the cab, ready to receive orders from him. The rules of the company particularly bearing upon this case-Nos. 28 and 29-are as follows: "(28) Every employ� is required to exercise the utmost caution to avoid injury to himself or to his fellows, and especially in the switching of cars, and in all movements of trains; in doing which work each employ� must look after, and be responsible for, his own safety. Jumping on or off trains or engines in motion, getting between cars in motion to uncouple them, and all similar imprudences, are dangerous, and in violation of duty. All employ�s are warned that if they commit them it will be at their own peril and risk. (29) Every employ� is here warned that before exposing himself in working, or in being on the tracks or grounds of the company, or in working with or being in any manner on or with its cars, engines, machinery, or tools, he must examine, for his own safety, all machinery, tools, track, cars, engines, or whatever he may undertake to work upon or with before he makes use of or exposes himself on or with the same, so as to ascertain, so far as he reasonably can, their condition and soundness. The object of this rule is to protect employ�s from suffering personal injury from any cause. While the company will be responsible to each one for the discharge of all its duties and obligations to him, and for any fault or neglect of its own or of...