Pennington v. Detroit, G.H. & M. Ry. Co.

• Decision Date: 04 March 1892
• Parties: PENNINGTON v. DETROIT, G. H. & M. RY. CO.
• Court: Michigan Supreme Court

51 N.W. 634

90 Mich. 505

PENNINGTON v. DETROIT, G. H. & M. RY. CO.

Supreme Court of Michigan

March 4, 1892

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

Action by Zelia Pennington, administratrix, etc., against the Detroit, Grand Haven & Milwaukee Railway Company, to recover for the death of John W. Pennington, alleged to have been caused by the negligence of defendant. From an order directing a verdict for defendant, plaintiff appeals. Affirmed.

Thomas Hislop, for appellant.

E W. Meddaugh and L. C. Stanley for appellee.

GRANT J.

Plaintiff's decedent was fatally injured December 17, 1888, in the freight-shed of the defendant, and died shortly after. He was a switchman, and the switching crew, aside from the engineer and fireman, consisted of one Willis, the conductor, and one Pratt, another switchman. They were engaged in switching cars at the time. The train consisted of about 20 cars. The engine, with 12 cars attached, was moving out of the shed upon an up grade. Four rows of posts extended length wise of the shed, and 20 feet apart, to support the roof. The engine and four cars were outside the shed. Pratt stood upon the fourth car from the engine. The track on which the cars were running at the time was south of the second row of posts from the north. The distance between the car on which the deceased was and the post was 13 inches, and between the ladder on the side of the car, down which it is claimed the deceased was going, and the post, 11 inches. South of this track was a platform about level with the floors of the freight-cars, and very close to it. The deceased and Willis stood upon this platform, in the vicinity of the fifth post from the entrance to the shed. The train was then moving out. Willis directed the deceased to cut off another car. Willis could see neither the engineer nor Pratt to give the signal. It therefore became necessary for the deceased to climb upon the train, give the signal to stop the train, and at the proper time to uncouple the car. He climbed upon the car and gave the signal, which Pratt saw, and undertook to communicate to the engineer; but the engineer evidently did not see it, because of the steam between him and Pratt. The car on which deceased then stood was the eighth or ninth from Pratt, and the eleventh or twelfth from the engine. The deceased did not wait to determine whether his signal had been received by the engineer, but turned and commenced his descent down the side of the car. Willis last saw him before the accident, and testified that he was then going across the car towards the ladder. Willis heard the deceased cry out, ran around the rear of the train, and found him lying between the fifth post from the entrance and the trucks of the car. Pratt, seeing that the engineer did not receive his signal, ran along the top of the cars and notified him. Upon stopping the train and receiving no further signal, Pratt went back to ascertain what the difficulty was. The deceased had been in the employ of the company at this place for about five months, was familiar with the situation, and was an experienced railroad man.

The negligence alleged is that the defendant was then using an old and defective engine, which permitted the escape of steam, and thus prevented the engineer from seeing the signals given by those in charge of the train. After setting forth the duty of the company, and its neglect, the declaration then proceeds to state that said deceased "in pursuance of the order of said Willis, was climbing down the south side of one of said cars to uncouple the same from the next car, the said train of cars, and all of them, being then stopped and standing still; and, owing to the grade on said tracks,...