Morch v. Toledo, S. & M. Ry. Co.

• Decision Date: 28 May 1897
• Citation: 113 Mich. 154,71 N.W. 464
• Parties: MORCH v. TOLEDO, S. & M. RY. CO.
• Court: Michigan Supreme Court

71 N.W. 464

113 Mich. 154

MORCH v. TOLEDO, S. & M. RY. CO.

Supreme Court of Michigan

May 28, 1897

Error to circuit court, Muskegon county.

Action to recover damages for personal injuries. John Morch plaintiff. The Toledo, Saginaw & Muskegon Railway Company defendant. Judgment for plaintiff. Defendant brings error. Reversed.

Geer &amp Williams (E. W. Meddaugh, of counsel), for appellant.

Chamberlain & Cross (Turner & Turner, of counsel), for appellee.

MOORE J.

The plaintiff sued defendant to recover for severe personal injuries received by him while he was in the employ of defendant, and recovered a judgment, from which defendant appeals. The usual avocation of plaintiff was as a section hand on defendant's road. At the time he received his injuries he was standing upon the steps or platform of the front end of the caboose, which was attached to a train consisting largely of flat cars loaded with ties. The train was in motion. The men would throw one end of the tie off the train, and the motion of the train would carry the end of the tie forward, until the tie would drop upon the roadbed. Some of the ties would drop in such a way as to be dangerously near the track. Upon the day in question the plaintiff had jumped from the front end of the caboose thrown a tie back, and got on at the rear end of the caboose gone through the car, and was in a position to get off again, should occasion require. His claim is that the speed of the train was quickened so as to make it unsafe to get off, and unsafe to throw the ties, and that while so standing there one end of a tie was resting on the ground and the other end came against his leg and crowded him against the car, resulting in his loss of a leg and other serious injuries. The declaration alleges that the train was in charge of a road master, or an assistant road master who represented the master, and that, while following his directions, the injury occurred. It is the claim of plaintiff that the train was in charge of Philander Schuman, who was then acting in the capacity of road master; that the plaintiff was acting under his orders; that it was by the direction of Mr. Schuman that the speed of the train was increased making the work so hazardous as to result in the injury to the plaintiff. The important question, then, is, in what capacity was Mr. Schuman acting? The road master was Mr. Raynor. The road had no officer who was designated as an assistant road master; but it is claimed that the character of the duties of Mr. Schuman was such as to make him the representative of the road for the day, and that for the purposes of this case he must be treated as an assistant road master. The record discloses that the usual employment of Mr. Schuman was foreman of section 6 at Greenville. He had three or four men under his charge, with the right to discharge them for cause, and hire other men in their places. Mr. Schuman lived in Greenville. The road master, Mr. Raynor, also lived at Greenville. He had been sick at times, and at the time of the trial was sick at Greenville. Upon the morning of the day of the accident, Mr. Raynor sent Mr. Schuman out with the train upon which plaintiff was hurt. He gave him instructions in relation to the loading, removing, and handling to the ties, and it was Mr. Schuman's duty to report to Mr. Raynor in the evening what he had done. Mr. Schuman had been sent by Mr. Raynor with the train upon a number of occasions before this, receiving his instructions before he started out, and reporting what he had done upon his return. The trainmen consisted of the engineer and fireman, a conductor, and one or two brakemen, and three or four section foremen and their section men. It was the duty of the trainmen to handle the train, and the duty of the section foremen and the section men to handle the ties. When the ties were distributed upon a given section, the foreman of that section indicated what ties, and how thickly he wanted them distributed; and I think the record fairly...