Mathy v. Chi. & N. W. Ry. Co.

• Decision Date: 30 October 1935
• Docket Number: No. 47.,47.
• Citation: 262 N.W. 917,273 Mich. 301
• Parties: MATHY v. CHICAGO & N. W. RY. CO.
• Court: Michigan Supreme Court

273 Mich. 301

262 N.W. 917

MATHY

v.CHICAGO & N. W. RY. CO.

No. 47.

Supreme Court of Michigan.

Oct. 30, 1935.

Action by Ann Mathy, administratrix of the estate of Vital Mathy, deceased, against the Chicago & North Western Railway Company. From a judgment for defendant non obstante veredicto, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Menominee County; Frank A. Bell, judge.

Argued before the Entire Bench.

George Barstow, of Menominee, for appellant.

Ryall & Frost, of Escanaba, for appellee.

NORTH, Justice.

Plaintiff's decedent, Vital Mathy, was a switchman in the employ of the defendant railway company which was engaged in interstate commerce. While so employed, Mathy met with an accident which resulted in his death. Plaintiff, as the administratrix of his estate, brought this suit under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover damages, alleging that decedent's death was caused by defendant's negligence. The case was submitted to a jury and plaintiff had verdict for a substantial amount. At the close of the proofs, defendant made a motion for a directed verdict. The trial court took this motion under advisement, and after verdict disposed of the motion by entering a judgment in favor of defendant non obstante veredicto. Plaintiff has appealed.

The two important questions presented by this appeal are stated by appellant as follows:

‘1. Was there sufficient evidence in the case to justify a jury in finding that the negligence of the defendant was the proximate cause of the accident?'

‘2. Did the evidence in the case show conclusively that the deceased assumed the risk’ of his employment?

If the latter one of these questions is answered affirmatively, the judgment entered must be sustained. We will therefore give it first consideration. The holding of the trial judge that the plaintiff's decedent assumed the risk of his employment as a matter of law can be sustained only in case such is disclosed to be the fact by undisputed testimony. This necessitates a rather detailed statement of the testimony on this phase of the case.

The accident happened about 10 a. m. on August 12, 1933, while the switching crew of which plaintiff's decedent was a member was working in the mill yard of the Marinette & Menominee Box Company at Marinette, Wis. The defendant company has a 50-foot right of way for what is called its ‘running track’ extending in an easterly and westerly direction through the mill yard of the box company. The switching crew was undertaking to place two flat cars loaded with box bolts on a sidind which served the box company's mill. The train at the time of the accident was on the ‘running track.’ It consisted of a locomotive moving backward and pulling three cars. The one nearest the locomotive was an empty box car, the other two being the flat cars loaded with box bolts. Plaintiff's decedent gave the engine crew the signal to proceed in an easterly direction for the purpose of reaching the switch to the spur track leading south from the ‘running track’ and to the place of unloading at the box factory where the two flat cars were to be spotted. A man by the name of Chernosky, a fellow switchman of plaintiff's decedent, was the only eyewitness of the conduct of deceased immediately preceding the accident. He testified: ‘I last saw Mathy just where I said. He got on the side of the box car, on the west end of the box car, on the north side of the track. He was riding on that side of the car toward the eastward the last I saw of him. * * * I didn't see anything of the accident.'

A short distance east of the point where Mathy boarded the box car and on the northerly side of the ‘running track’ there was a pile of lumber consisting of boards an inch thick and of varying lengths. The ends of the boards extending toward the track were uneven. Defendant's roadmaster testified that he measured the clearance between the lumber pile and the rail and found a distance of 3 feet 7 inches between the rail and the board that projected farthest from the pile at the point of accident. Other witnesses testified there was less clearance between the rail and the nearest portion of the lumber pile. A box car overhangs the track approximately 2 feet. The railroad regulations required a clearance of 6 feet. The theory of plaintiff's case, although there was no direct testimony to that effect, is that plaintiff's decedent by coming in contact with a projecting portion of the lumber pile was knocked from his position on the box car and was run over by the flat car immediately following. Decedent sustained serious injuries which resulted in his death four or five hours later.

There is considerable variance in the testimony as to how long prior to the accident this lumber pile had been placed adjacent to defendant's track. One witness testified: ‘It could not have been over 4 or 5 days I don't think, maybe less than that, before the accident.’ Other witnesses fixed the time as being from a week to ten days, ten days to two weeks, a month to six weeks. But for whatever time it may have been there, and for a much longer period, plaintiff's decedent had been working as a member of this same switching crew; and incident to such employment was engaged from time to time in switching cars over this and adjacent tracks. Chernosky, who thought the pile of lumber had been there a week or ten days, testified that in the meantime he and Mathy had carried on switching operations in that locality about five or six different times. The foreman of the switching crew testified that on the average they had been switching over these tracks two or three times a week. At least the testimony is such as to establish conclusively that Mathy on several occasions had assisted in carrying on switching operations in the immediate vicinity after the lumber pile had been...