Michigan C. R. Co. v. Leahey

• Decision Date: 12 May 1862
• Citation: 10 Mich. 193
• Court: Michigan Supreme Court
• Parties: The Michigan Central Railroad Company v. Patrick Leahey

10 Mich. 193

The Michigan Central Railroad Company v. Patrick Leahey

Supreme Court of Michigan

May 12, 1862

Heard. October 30, 1861; October 31, 1861 [Syllabus Material] [Syllabus Material]

Error to Wayne Circuit. The facts will be found sufficiently stated in the opinions.

New trial granted.

G. V N. Lothrop, for plaintiff in error:

1. If the negligence of Hidden, a third person, was the effective and proximate cause of the injury, the defendants are not liable, even though there was a separate negligence on their part which contributed secondarily to the injury.

The action is for tort. And the railroad company, if liable at all, must be liable either as a joint wrong-doer or as sole wrong-doer.

It is true that all joint torts are also several for the purposes of suit. But the wrong complained of in this action was not joint.

In trespass there must be a concert or concurrence in the wrong to give a joint action. If each acts separately, though the acts concur both in time and character, they are but several trespasses: 19 Johns. 381; 10 Wend. 654; 2 Conn. 206.

So in case, the neglect or omission must be a joint neglect or omission to warrant a joint action: 17 Wend. 562; 1 Denio 495.

But it is clear that that there was no joint negligence. Even if Hidden and the railroad company are both chargeable with negligence, yet it is with several acts of negligence. Their acts were entirely distinct and separate.

It follows that the action cannot be maintained against the railroad company as a several suit against one of two joint trespassers.

To maintain the action as for a separate trespass of the company, the injury must have arisen directly and proximately from some neglect of the company. Or, in other words, the neglect of the company must have been the effective cause of the injury.

But in the absence of any such gross neglect, in the absence of all willful and wanton conduct of the company's servants, the cars running in a lawful and usual way, the present is a case eminently fit for the application of the rule contended for.

But in this case the neglect of a third person contributes proximately to the injury. This neglect, therefore, is the moving, the effective, the responsible cause--the causa causans--of the accident. And the court below misled the jury in refusing the instructions asked for: 7 Gray 100; Ibid., 104; 4 C. & P., 263.

2. But there is another ground on which Leahey was not entitled to recover. That ground is found in the relation in which Hidden and Leahey stood at the time of the accident. Hidden was on the premises of the company, executing a contract with them. Leahey was an employe of Hidden in the contract. Under these circumstances, Leahey stands on the same footing as Hidden, and, if the fault of Hidden contributed proximately to the accident, Leahey can not recover.

Leahey goes on to the railroad premises under the license of a contract. Otherwise he would have been a trespasser. He is injured by an accident arising in the lawful and usual business of the company. The contract under which he was at work related immediately to that business. He was engaged in sawing and piling wood, near a side track, along which trains came daily to get that very wood. All parties who came on to the premises under that contract, came under the risks and obligations which that contract contemplates.

But it will be said that there is no privity of contract between Leahey and the company. That is true. But it does not follow, therefore, that Leahey is unaffected by the contract.

If he engages under the contract, there arises an identity between him and his employer to a certain extent in the business. And if his employer's neglect in the conduct of the work brings directly upon him an injury, that neglect is his own so far as third persons are concerned. His redress is against his employer: 8 M. G. & S., 116; 30 Barb. 229, 235.

W. Gray & T. Romeyn, for defendant in error:

We concede that the company would not be liable for an injury to one employe occasioned by the fault of another employe engaged in the same business. But this rule has no application, for Leahey was not an employe of the company: Redf. on Railw., 390; Pierce on Railw., 299; 30 Barb. 229; 19 N. Y., 127; 4 Seld. 175.

The case cited from 8 M. G. & S. indeed holds, that where an injury was done a passenger through the mutual fault of the driver of the omnibus in which he was riding, and the driver of another omnibus, the passenger could not recover against the owner of the omnibus in which he was not riding.

The decision was well enough, for plaintiff there was himself as much in fault as the driver. It is also sustainable on principle if we admit that the passenger, by taking that particular omnibus, assumed its control, or made the driver his agent. But on the notion of the plaintiff being identified with the management of the omnibus, and thereby losing, under the circumstances, the right of recovery, the case is not sustainable on principle, and in this view has been overruled in N. Y.: 19 N. Y., 342; 20 N. Y., 492.

In any view, the present case is distinguishable. There the plaintiff was injured while in the very act of using the agency of the omnibus. Here, the plaintiff had no connection with the act of his employer in hauling the wood, or in placing or in using the plank. His sole employment was, as a day laborer, to receive the wood when sawed, and pile it.

There was no privity of contract between Leahey and the company; and even if there was any assumption of risks as between Leahey and Hidden, the company can not avail itself of the benefits thereof: 30 Barb. 235.

The company owed the same duty to Leahey as to any other stranger; and, if they were in fault, and he not, can not escape by saying another stranger was also to blame. While faultless himself, the plaintiff has a remedy against one, or all, whose wrong caused the injury: 20 N. Y., 492.

Even if Hidden himself was the party injured, the charge asked by defendants would be incorrect. The plank was not thrown on the track as the train approached. The agents of defendants might have seen this if using proper care. Hidden's conduct was not the immediate, direct, proximate cause of the injury; at least, it might not be; and it would be a question for the jury under all the circumstances.

The charge given was the law, and the entire law applicable: 13 Geo. 86; 24 Vt. 487; 18 N. Y., 248, 423. But this view is not very material, for Leahey did not place the plank, did not know it was there, and it was not placed in connection with his employment or occupation.

Campbell, J. Manning, J. concurred. Christiancy, J. dissented. Martin, Ch. J. concurred.

OPINION

Campbell J.:

The defendant in error brought an action in the court below to recover damages for an injury sustained by reason of the cars of plaintiffs in error running off from a side track into their woodshed, where he was at work under one Hubbard Hidden, who had contracted with the company to draw, saw and pile their wood, at Dearborn station, where the accident occurred. The side track was connected with the main track only at one end, and the accident was occasioned by a train of empty wood-racks backing in on this track, between the rows of woodsheds. Damages were recovered below, and the case comes up on some of the exceptions taken on the trial, no error being assigned except upon charges or refusals to charge.

The points made on the assignment of errors are connected in principle, and raise substantially the same question. There was evidence tending to show that the cars were made to run off the track by a plank laid down by Hidden between the rails, to aid him in drawing wood across the track. And it is upon the hypothesis that this may have been the cause of the accident, that charges were asked which the court refused to give, without certain modifications; and exceptions were taken to the decisions. Upon the other exceptions no errors are assigned, and they become immaterial for the purposes of this case.

The plaintiffs in error (the defendants below) requested the court to charge the jury:

"1st. That the plaintiff and his employer (Hidden), while working on the premises, were bound to use the same ordinary care against accidents to themselves as was incumbent on the defendants; and if the neglect of plaintiff or Hidden, in the course of their work under said contract, contributed proximately to the accident in question, the plaintiff can not recover, unless the conduct of the defendants' servants was wanton or willful.

"2d. That if the jury find that Hidden, plaintiff's employer, in the course of his work under said contract, placed a plank on the said side track, and that thereby the cars of defendants were thrown off and ran against the woodshed, that this was neglect on the part of Hidden, which contributed proximately to the accident, and that plaintiff can not recover, unless the conduct of defendants' servants was wanton and willful."

The court declined so to instruct the jury, except with the qualification that it must appear that the plaintiff knew of Hidden's placing such obstruction on the track, and exposed himself to the danger.

The question, whether the court erred in its ruling, involves, to some extent, an inquiry into the doctrine relating to liability, where there is negligence in different parties, and also the rules which govern among parties engaged in a common pursuit.

Where no other considerations interfere, it is a well settled rule that a person who has by his own negligence so far contributed to the injury done him that he might, by the use of ordinary diligence or care, have avoided it, he has no right of action: Butterfield v....