Patterson v. Wabash, St. L. & P.R. Co.

• Decision Date: 11 June 1884
• Parties: PATTERSON v. WABASH, ST. L. & P. RY. CO.
• Court: Michigan Supreme Court

19 N.W. 761

54 Mich. 91

PATTERSON v. WABASH, ST. L. & P. RY. CO.

Supreme Court of Michigan

June 11, 1884

It is not necessary, in taking a deposition, that an affidavit be made showing the circumstances required by the statute for taking the deposition. It is sufficient that the notice of taking the deposition shows the necessary circumstances; but before the depositions can be read in evidence, the party offering them must make it appear to the court by prima facie proof, at least, that the statutory causes for taking them existed at the time, and still continue to exist.

The statements of a servant of a railroad company made after an accident, as to his own acts as the producing cause, are not competent evidence as an admission to fix the liability upon the corporation, and testimony as to what he said is hearsay.

In most cases of tort, where there is more than one party guilty of the wrongful act which caused the injury, a plaintiff may proceed against them jointly or severally.

Where a railway company has the right to use the tracks of another company, it must so use them as not to injure other parties also having a right to their use.

Depositions taken under section 7468, How.St., must substantially comply with its provisions.

When the statutory notice of taking a deposition gives notice of taking the deposition of a certain person, and the deposition of another person is taken, it must be excluded from the evidence.

The statements of an agent, to bind his principal as the latter's admission, must be made by an agent having authority to represent the principal in the transaction in which it was made, and his statements, to be admitted, must be part of the res gestae.

Error to Wayne.

Atkinson & Atkinson and Isaac Marston, for plaintiff.

Alfred Russell, for defendant and appellant.

CHAMPLIN, J.

Plaintiff brought suit against defendant, and alleged in his declaration that "on or about the twenty-seventh day of March, 1883, the plaintiff was proceeding on a train of cars running from Toledo, Ohio, to Columbus, Ohio, on the Columbus, Hocking Valley & Toledo Railway, and was a regular passenger upon said train, and said train had reached a point at East Toledo, where, from the main line on which it was proceeding, there branched off a side line running up the east branch of the Maumee river, upon which branch line the said defendant was moving a train of cars, and it was the duty of the said defendant to stop its said train at said point and to await orders, and not to open the switch there until it had received the order, nor until the said train had passed on which the said plaintiff was being carried; and it was further its duty to have a safe and convenient switch at said point, and to have a switchman there, so that said switch would not be opened while said train was passing on which this plaintiff was being carried, and to have such a switch that, if opened, those running said train could perceive it and arrest said train in time; yet the said defendant so negligently and unskillfully conducted themselves in and about the management of their said train on the said side track and switch that they had at that point a switch of an old, disused, and dangerous pattern, and so constructed that the approaching train could not readily perceive when the same was opened; that they had no regular attendant upon said switch; that they did not arrest their said train and await for orders before entering upon the track which was being used by the said train on which said plaintiff was being carried, nor wait until the said train had passed, but negligently and carelessly, and without fault on the part of this plaintiff, opened the said switch and prepared to carry their train from said branch track unto the track over which plaintiff was approaching and then and there caused plaintiff's train to leave the track on which it was running and enter on said branch or side track, and precipitated the same upon the train of the said defendant, whereby the said trains were brought together with great force and violence, and the said plaintiff" received the injury complained of.

It appeared in evidence on the trial of the cause that on the twenty-fifth day of March, 1883, the plaintiff bought a ticket at Toledo Ohio, for a passage over the Columbus, Hocking Valley &amp Toledo Railway Company, from Toledo to Columbus, and entered the train about 5 o'clock in the morning, which started at that time for Columbus. It appeared from other testimony in the case that the track upon which the car in which the plaintiff was being conveyed ran and was owned by the Pennsylvania Railway Company, and that the Columbus, Hocking Valley & Toledo Railway Company was operated by the Pennsylvania Company for five miles out of Toledo, and that at East Toledo, and within the corporate limits of the city of Toledo, and about one mile east of the place from which the coach containing the plaintiff started, there was a branch track and a switch at the junction of the two tracks and that the branch track and the switch, as well as the main track, were the property of the Pennsylvania Company; that the Pennsylvania Company maintained the switch, and had an employe whose duty it was to place lights upon it at night and remove them in the morning; that when said switch was closed a white light was shown up and down the main track each way, and that when it was opened two red lights were caused to be shown up and down the main track each way by the act of opening. It also appeared that at the junction of the branch and main tracks there was a telegraph office owned by the Pennsylvania Company, and in it a telegraph operator who was the servant of the Pennsylvania Company, and whose duty it was to see that said light was kept burning at night. It further appeared that the defendant company, by arrangement with the Pennsylvania Company, had the right to run its freight trains over the said branch track upon the main track at said switch, and thence over the main line, a distance of about one mile from East Toledo, into the Pennsylvania yards at Toledo, upon payment of a toll of one dollar per loaded car.

It appeared that the train in which the plaintiff was conveyed left Toledo while it was yet dark, and on the main track, and that the defendant's freight train was waiting on the branch track, and that the conductor of said freight train, having a key to the said switch in his pocket, which key had been furnished him by the Pennsylvania Company, was inside the telegraph operator's office waiting to receive orders to enter Toledo; that the custom was for the train desiring to use said switch to pass upon the main track and to open said switch, and that by the rules and practice of the defendant company the brakeman of the freight train had no authority to open said switch until directed so to do by the conductor of the freight train, and until furnished by him with the key to the switch, but the brakeman did sometimes open the switch without order when it was found unlocked. It appeared that the engine near the train in which the plaintiff was conveyed was proceeding at the rate of from 15 to 18 miles an hour, and that as he came near the switch, about six minutes after leaving Toledo, he saw that there was no light on the switch, and he also saw the freight train of the defendant and the head-light of the engine of said freight train standing still upon the branch track.

Certain rules of the Pennsylvania Company were put in evidence, from which the defendant claimed that it was the duty of said engineer to have halted until he could ascertain with certainty whether or not the switch was open, there being no light upon it; that said engineer, however, did not halt, and, the switch being open, the train conveying the plaintiff passed off the main track and upon the branch track, and collided with the defendant's freight train standing still upon said branch track. The defendant also put in evidence rules of the Pennsylvania Company in regard to lights and speed. The copies of the rules read in evidence are given in the margin. ^[1] The engineer of the plaintiff's train, on cross-examination, testified as follows: Question. If there had been a light there to indicate that the switch was open, the accident would not have occurred, would it? Answer. No, I don't think the collision would have occurred. Q. If you had come to a dead stop and stood until you had found out how the switch was, there would have been no collision? A. There would not be apt to be a collision if I stood still, but I supposed the switch was right.

It further appeared that the switch was allowed to remain unlocked nearly half the time; that the engineer above mentioned, about 40 minutes before the collision, had backed his engine upon the main track and passed this switch in going into Toledo to make up his train in the Pennsylvania yard, and that the switch was closed then; that the switch was called a Wharton switch, and that an engine passing over it into Toledo would not, if the switch were open, leave the track, although an engine passing out of Toledo would, if the switch were open, leave the track and pass upon the branch track.

The first question I shall consider is whether the evidence discloses such a state of facts as would render the defendant liable, assuming that it was through the negligence of one of its brakemen that the collision occurred. It is unnecessary to decide whether, under the testimony in this case, the plaintiff could have maintained an action against the Columbus, Hocking Valley & Toledo Railway Company, founded on his contract relations with that company, or, waiving that he could have maintained an action on the case against such company,...