McDonald v. Michigan Cent. R. Co.

• Decision Date: 06 March 1903
• Citation: 132 Mich. 372,93 N.W. 1041
• Court: Michigan Supreme Court
• Parties: McDONALD v. MICHIGAN CENT. R. CO.

93 N.W. 1041

132 Mich. 372

McDONALD v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

March 6, 1903

Error to Circuit Court, Gladwin County; Nelson Sharpe, Judge.

Action by Joseph D. McDonald against the Michigan Central Railroad Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

O. E. Butterfield (Henry Russel, of counsel), for appellant.

De Vere Hall, for appellee, cited the following cases:

Georgia Railroad Co. v. Ellison, 87 Ga. 700, 13 S.E 809; Sadowski v. Car Co., 84 Mich. 100, 47 N.W. 598; Ashman v. Railroad Co., 90 Mich. 571, 51 N.W. 645; Roux v. Lumber Co., 94 Mich. 615, 54 N.W. 492; Balhoff v. Railroad Co., 106 Mich. 613, 65 N.W. 592; Gardner v. Railroad Co., 150 U.S. 360, 14 S.Ct. 140 37 L.Ed. 1107; Quincy Mining Co. v. Kitts, 42 Mich 39, 3 N.W. 240; Maltibe v. Belden (N. Y.) 60 N.E. 645, 54 L. R. A. 56-59; Murray v. Railroad Co., 1 McMul. 385, 36 Am. Dec. 268; Farwell v. Railroad Co., 4 Metc. (Mass.) 49, 38 Am. Dec. 339; Holden v. Railroad Co., 129 Mass. 269, 37 Am. Rep. 343; King v. Railroad Corp., 9 Cush. 112; Holden v. Fitchburg, 129 Mass. 268, 37 Am. Rep. 343; Ford v. Fitchburg Railroad Co., 110 Mass. 240, 14 Am. Rep. 598; Hough v. Railway Co., 100 U.S. 213, 25 L.Ed. 612; Flike v. Boston & Baltimore R. R. Co., 53 N.Y. 549, 13 Am. Rep. 545; Johnson v. Boston Tow-Boat Co., 135 Mass. 215, 46 Am. Rep. 458; Northern P. R. R. Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755; New England R. R. Co. v. Conroy, 175 U.S. 323, 20 S.Ct. 85, 44 L.Ed. 181; Morton v. Railroad Co., 81 Mich. 431, 46 N.W. 111; Railroad Co. v. Ross, 112 U.S. 377, 5 S.Ct. 184, 28 L.Ed. 787; Baltimore & O. R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772; McDonald v. The Michigan Central R. Co., 108 Mich. 11, 65 N.W. 597; Swoboda v. Ward, 40 Mich. 420; Railroad Co. v. Gildersleeve, 33 Mich. 133; Smith v. Potter, 46 Mich. 258, 9 N.W. 273, 41 Am. Rep. 161; Samuelson v. Iron Mining Co., 49 Mich. 172, 13 N.W. 499, 43 Am. Rep. 456; Brewer v. F. & P. Ry. Co., 56 Mich. 627, 23 N.W. 440; Smith v. Car Works, 60 Mich. 501, 27 N.W. 662, 1 Am. St. Rep. 542; Hewitt v. F. & P. M. R. Co., 67 Mich. 66, 34 N.W. 659; Peterson v. C. & N.W. R. Co., 67 Mich. 109, 34 N.W. 260, 11 Am. St. Rep. 564; Illick v. F. & P. M. R. Co., 67 Mich. 638, 35 N.W. 708; Adams v. Iron Cliffs Co., 78 Mich. 289, 44 N.W. 270, 18 Am. St. Rep. 441; Van Dusen v. Letellier, 78 Mich. 504, 44 N.W. 572; Hunn v. Railroad Co., 78 Mich. 517, 44 N.W. 502, 7 L. R. A. 500; Morton v. B. D. C. & A. R. R. Co., 81 Mich. 423, 46 N.W. 111; Roux v. Lumber Co., 85 Mich. 525, 48 N.W. 1092, 13 L. R. A. 728, 24 Am. St. Rep. 102; Lee v. M. C. R. R. Co., 87 Mich. 574, 49 N.W. 909; Irvine v. F. & P. M. R. R. Co., 89 Mich. 416, 50 N.W. 1008; Dewey v. D. G. T. & M. R. R. Co., 97 Mich. 343, 52 N.W. 942, 56 N.W. 756, 16 L. R. A. 342, 22 L. R. A. 292, 37 Am. St. Rep. 348; Jarman v. C. & G. T. R. R. Co., 98 Mich. 138, 57 N.W. 32; Balhoff v. M. C. R. R. Co., 106 Mich. 612, 65 N.W. 592; Anderson v. M. C. R. R. Co., 107 Mich. 591, 65 N.W. 585; McDonald v. M. C. R. R. Co., 108 Mich. 11, 65 N.W. 597; Woods v. C. & G. T. R. Co., 108 Mich. 396, 66 N.W. 328; Shadford v. A. A. Street Ry. Co., 111 Mich. 394, 69 N.W. 661; Lellis v. M. C. R. R. Co. and A. A. R. R. Co., 124 Mich. 39, 82 N.W. 828; Mann v.

L. S. & M. S. R. Co., 124 Mich. 644, 83 N.W. 596; Johnson v. Spear, 76 Mich. 139; Tangley v. Wilson, 87 Mich. 453; Rowley v. Calliau, 90 Mich. 31, 42 N.W. 1092, 15 Am. St. Rep. 298; Wachsmuth v. Electric Co., 118 Mich. 275, 76 N.W. 497; Noble v. Bessemer Co. (Mich.) 86 N.W. 520, 54 L. R. A. 456; Miller v. C. & G. T. Railway Co., 90 Mich. 230, 51 N.W. 370; Miller v. M. C. Railroad Co., 123 Mich. 374, 82 N.W. 58; Fones v. Phillips, 39 Ark. 17, 43 Am. Rep. 264; Daves v. Southern Pac. R. R. Co., 98 Cal. 20, 32 P. 708, 35 Am. St. Rep. 133; Denver T. Co. v. Crumbaugh, 23 Colo. 363, 48 P. 503; McElligott v. Randolph, 61 Conn. 157, 22 A. 1094, 29 Am. St. Rep. 181; B. & P. R. R. Co. v. Elliott, 9 App. D. C. 341; C. & E. I. R. R. Co. v. Kneirim, 152 Ill. 458, 39 N.E. 324, 43 Am. St. Rep. 259; C. H. & D. R. R. Co. v. McMullen, 117 Ind. 439, 20 N.E. 287, 10 Am. St. Rep. 67; Brann v. C. R. I & P. R. R. Co., 53 Iowa, 595, 6 N.W. 5, 36 Am. Rep. 243; A. T. & S. F. R. Co. v. Moore, 29 Kan. 644; Shanny v. Androscoggin Mills, 66 Me. 420; Tierney v. M. & St. L. R. Co., 33 Minn. 311, 23 N.W. 229, 53 Am. Rep. 35; Coontz v. M. P. R. Co., 121 Mo. 652, 26 S.W. 661; C. B. & Q. v. Kellogg. 54 Neb. 127, 74 N.W. 454; Jaques v. Manufacturing Co., 66 N.H. 482, 22 A. 552, 13 L. R. A. 824; Flike v. B. & A. R. Co., 53 N.Y. 549, 13 Am. Rep. 545; Chesson v. Lumber Co., 118 N.C. 59, 23 S.E. 925; Cameron v. G. N. R. Co., 8 N. D. 124, 77 N.W. 1016; Anderson v. Bennett, 16 Or. 515, 19 P. 765, 8 Am. St. Rep. 311; Mulvey v. Locomotive Works, 14 R.I. 204; Carter v. Oliver Oil Co., 34 S.C. 211, 13 S.E. 419, 27 Am. St. Rep. 815; H. & T. C. R. R. Co. v. Marcellus, 59 Tex. 334; Davis v. R. R. Co., 55 Vt. 84, 45 Am. Rep. 590; Moon's Adm'r v. A. R. R. Co., 78 Va. 745, 49 Am. Rep. 401; Ogle v. Jones, 16 Wash. 319, 47 P. 747; Cooper v. P., C. & St. L. R. Co., 24 W.Va. 37; Brabbits v. C. & N.W. R. Co., 38 Wis. 289.

MOORE J.

The plaintiff recovered a judgment against the defendant for injuries received by him while in its employ. The case is brought here by writ of error.

The plaintiff was in charge of a freight train running from Grayling to Mackinaw City. Grayling is about half way between Bay City and Mackinaw City. The defendant maintains a car repair shop at Bay City. At Grayling it has a train master and four inspectors or repairers. At Mackinaw City it has one car inspector or repairer. The inspectors or repairers at Mackinaw City and Grayling inspect the cars, and repair such broken or defective parts as they are able to with the appliances at hand, which are not sufficient to enable them to do any welding. If the repairs are of such a character as to require it the cars are sent to the stop at Bay City. While in charge of his train in September, 1901, as it approached the third or fourth station north from Grayling, the plaintiff attempted to set the brake upon the way car. Something gave way. The plaintiff was thrown between the way car and the car next front of it. The wheels of the way car passed over him, injuring him severely. An examination after the injury showed that the chain attached to the lower part of the brake mast had before that parted and been repaired by using a wire which was supposed to have been hay wire. This wire gave way under the strain, and hence the accident. This accident occurred upon the second round trip of the way car after it left the repair shop at Bay City. It does not appear when or by whom the hay wire was used to repair the chain. It is claimed by defendant the car was in good repair when it left the shop at Bay City. This is not admitted by plaintiff. Mr. Trumley, the inspector at Grayling, who claims he inspected the car at that place, was a witness on the part of the defendant, and disclaimed all knowledge of the wire. The inspector from Mackinaw City was not produced as a witness.

Counsel for defendant says there are two questions presented by the record: (1) The liability of a railroad company to a freight conductor injured by the negligence of a car inspector, whose duty it was to inspect and repair the way car. (2) The right of such a conductor to recover for injuries resulting from an unreliable brake upon a way car, when, by a rule of the company, he was 'required to know that there was a reliable brake' on the car before making use of it As to the first of these questions, the position of the defendant is shown by the following statements taken from the brief of counsel 'The duty of the company is: (1) To provide a reasonably safe place and reasonably safe appliances. (2) To use reasonable care to maintain place and appliances in a reasonably safe condition.'

It is said the car was reasonably safe when it left the shop at Bay City. In regard to the duty of the company to maintain it in a reasonably safe condition, it is said: 'It performs the duty by employing a competent servant to inspect and repair defects when they appear; and, before it can be held liable for injuries resulting from defects arising in the course of operation, it must have notice, either actual or constructive, that the defect exists, or that the servant is not performing the work assigned to him with reasonable care. In other words, there must be evidence that the master is not exercising reasonable supervision over his servants to see that they perform their work with reasonable care. There is no delegation of duty. It is performance. It is an exercise of reasonable care to maintain the appliance in a reasonably safe condition.'

Again 'The company furnishes this way car to its Grayling-Mackinaw division. It has a number of employ�s who are to make use of the car, some to inspect it, some to ride upon it, and some to set its brakes. The man who is to inspect it fails in his work. The company has no means of knowing what moment an employ�, hitherto trusty and reliable, will prove deficient. But it has exercised reasonable care to preserve the reasonably safe condition of this way car while it is in use by the employ�s of that division, by employing competent men to inspect the car at the end of every trip. Unless the plaintiff is able to show that the company knew of the existence of the defect, or that it had existed for a sufficient length of time to impose upon the company the duty to know, he cannot recover. This is the full measure of the defendant's duty to the plaintiff in this case, and we submit it is not shown to have neglected that duty.' Counsel cite cases which it is claimed sustain this...