McDonald v. Michigan Cent. R. Co.
| Decision Date | 30 December 1895 |
| Citation | 108 Mich. 7,65 N.W. 597 |
| Court | Michigan Supreme Court |
| Parties | MCDONALD v. MICHIGAN CENT. R. CO. |
Error to circuit court, Bay county; Andrew C. Maxwell, Judge.
Action by William McDonald against the Michigan Central Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.
Hatch & Cooley, for appellant.
McDonell & Hall, for appellee.
The defendant appealed from a judgment rendered in an action brought to recover damages sustained in an attempt to couple an engine to a train of cars. The accident happened on a branch road running from Gladwin to Pinconning, where it joins the defendant's main line. On this day the engineer whose duty it was to inspect the engine discovered that the pushbar upon the front of the engine was cracked. This discovery was made just before leaving for Gladwin, and he did not report it thinking it would answer for the trip, which would otherwise be delayed. The train consisted of several freight cars, a baggage car, and some coaches. When within two miles of Gladwin, the water became low in the tank, and the engine was uncoupled, and taken to Gladwin for water. The plaintiff rode in the cab. At Gladwin the engine was turned around for convenience in taking water; and, to avoid turning twice more, the engineer determined to couple to the train with the pushbar, and back his engine for the two miles. On the return from Gladwin to the train, the plaintiff sat upon the pilot and, when within about two car lengths of the train, he stepped down upon the crossbar of the pilot, and raised the pushbar, which entered the drawhead of the car properly, but was broken by the violence of the shock, as was the brakebeam of the car and a drawbar of the third car beyond. At the time of attempting to make the coupling, the plaintiff stood upon the crossbar of the pilot. Several witnesses stated that the only prudent or usual way to make a coupling with the locomotive pushbar is to stand upon the pilot, and raise and guide the bar, as the car is approached. The engine is shown to have struck the train, while the former was going at a rate of five or six miles an hour, in consequence of a failure of the brake and reverse lever to work, both of which the engineer said that he used, but without diminishing speed, although the brake had worked well a moment or two before, when he had slowed down to a degree that required a further use of steam to reach the car. The plaintiff and engineer both testified that this engine had on former occasions failed to respond to the application of the brake quickly. The plaintiff lost his hand.
It was the duty of the defendant to furnish machinery in a reasonably sound and safe condition, and to use ordinary care in keeping the same in repair. This is an absolute duty, which he cannot relieve himself from by imposing it upon another. There is no claim that defendant did not furnish a reasonably safe pushbar. If there is liability, it must be based upon a failure to use proper care in discovering and remedying the defect. If there was negligence in this, it was either a failure to prudently inspect, or, by reason of the use of the defective pushbar, after inspection. The record shows that there was no provision for inspection other than inspection by the engineer operating the train. He was expected to inspect his engine at all practicable times, and to report defects. This was no more than common prudence dictates should be required of all operatives of railway trains, and it is to be considered as a part of their duties in and about the operation of their trains; and this is as true when the railroad company makes no other provision for inspection as when it has another regular inspector. Such inspection, in the ordinary operation of the road, is the act of a fellow servant, as between the engineer and brakeman, and, as between them, does not constitute the engineer a representative of the master. To say that an engineer who should err in attempting to make the next station, after his engine became broken, acted as the representative of his master, thus holding the latter liable to the fireman, who was injured, would be carrying the rule too far. An unreported injury of the brakes known to the brakeman would be another illustration. The duty that the master owes to his patrons requires vigilance and care upon the part of the crew, and the master should be permitted to require it without subjecting himself to all the consequences following negligence by an inspector proper. The duty of such inspection should not be imposed upon operators of trains or machinery, at the master's peril. If he provides for the discovery of defects and repair of his machines with reasonable diligence, it should be enough; and he should be allowed to provide additional precautions and safeguards, through the vigilance of operatives. To hold otherwise would put a premium upon carelessness.
Several Michigan cases appear to recognize the distinction made. In Smith v. Potter, 46 Mich. 258, 9 N.W. 273, the failure of the yard inspector to detect a defect in a car received from another road was held to be the negligence of a fellow servant. A similar holding will be found in Dewey v. Railway Co., 97 Mich. 333, 52 N.W. 942, and 56 N.W. 756. These two cases carry the rule further than as stated above, holding, in effect, that a yard inspector of foreign cars is engaged in the common enterprise of operating the train. The case of Miller v. Railway Co., 90 Mich. 230, 51 N.W. 370, and Jarman v. Railway Co., 98 Mich. 135, 57 N.W. 32, are also in line with these cases. But if the company makes no other provision for inspection, and chooses to rely upon the reports of its men, deferring repairs until breaks occur, or until the operators, in due course of business, report defects, we must either say that it has neglected the duty of inspection altogether, or that it has imposed one of its duties upon its operatives, and that it does not fall within the limits of fellow service, or that it may avoid the duty which the law imposes, by invoking the rule of fellow servant. So long as operatives do report, and the master repairs promptly, the jury may properly say that there is no negligence on the part of the master; but, if defects are not seasonably repaired, the master neglects a duty, and we should not split hairs to determine whether it was his personal carelessness, or that of the agent whom he appoints to apprise him of his impending duty to repair, although such agent be a fellow operative of one who is injured by reason of a want of seasonable repair. Brown v. Gilchrist, 80 Mich. 56, 45 N.W. 82; Johnson v. Spear, 76 Mich. 139, 42 N.W. 1092; Van Dusen v. Letellier, 78 Mich. 492, 44 N.W. 572; Morton v. Railroad Co., 81 Mich. 431, 46 N.W. 111; Dewey v. Railway Co., 97 Mich. 333, 52 N.W. 942; McKinney, Fel. Serv.�� 32-271; Bailey, Mast. & S. 116; Fuller v. Jewett, 80 N.Y. 46; Flike v. Railroad Co., 53 N.W. 549; Beesley v. Wheeler (Mich.) 61 N.W. 659, and cases cited.
Can we say, as matter of law, that the master was negligent, or that he was not negligent, under the testimony contained in this record? The engineer discovered the defect in the pushbar before he left Pinconning, and while there was time and opportunity to give up the trip. If may be said that the defect was not such as to require the defendant to withdraw or delay its train to the inconvenience of its patrons and derangement of its business; that the pushbar need not have been used, or could have been used with care, for one trip, if, indeed, it was not reasonably safe for ordinary use, although slightly checked,-all of which may be true, and such suggestions might be proper for the consideration of the jury upon the question of the negligence in using the engine after this discovery. The exigencies of business may require the temporary use of defective cars and engines, and in this case it is plain that it could have been safely used if no attempt had been made to couple the head of the engine to the cars. Such emergencies call for increased care upon the part of those operating the machinery. Where the person injured is aware of the defect, he takes his chances if he uses the machine. Railroad Co. v. Gildersleeve, 33 Mich. 133; Smith v. Car Works, 60 Mich. 501, 27 N.W. 662; Ragon v. Railway Co., 97 Mich. 265, 56 N.W. 612.
It may be that this pushbar, though checked, was sufficiently strong...
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