Error
to circuit court, Jackson county; Erastus Peck, Judge.
Action
by Sarah F. Peppett, as administratrix, against the Michigan
Central Railroad Company, to recover damages for the death of
her husband. From a judgment entered on a verdict directed
for defendant, plaintiff brings error. Affirmed.
A
disinterested witness marked the outer rail at a curve, where
the wheels of the engine left the track, with a chisel, on a
flange, and testified that the same rail was there 10 days
before the trial, with his mark on it. Four other witnesses
testified that the rail had not been taken out. The state
mechanical engineer and the superintendent of another road
testified that they had seen the marked rail several days
after the wreck, and that it was a safe one. The only
contradictory evidence was that of two witnesses, who
testified, from mere recollection and opinion, that they saw
the marks on the rail immediately after the accident, but did
not see the marks a few days afterwards, and that they
believed the rail had been changed. Held not a serious
conflict of evidence, so as to require the question whether
the rail had been removed to be submitted to the jury.
Plaintiff's counsel state her case as follows
"George Peppett, the plaintiff's intestate, was, on
the 13th day of September, 1895, a locomotive
engineer in the defendant's employ. He was running
passenger engine No. 507, pulling the train known as the
'North Shore Limited,' one of the fastest trains on
the road. He left the city of Jackson at 10:30 o'clock in
the morning of September 13th, and was due at Marshall, 32
miles distant, at 11:20. The train was not scheduled to stop
at Marshall, and, while running around a curve inside the
city limits, the engine left the track at a point a few feet
west of Maple street. At the time of the derailment the train
was moving at the rate of about 35 miles an hour. After
leaving the rails, the engine ran on the ties for about 350
feet, when she left the ties, and, running in a southerly
direction, across the right of way, tipped over in Marshall
avenue, pinning the engineer under the cab, and causing his
death. The track between Maple street and Marshall avenue
runs east and west, in a curve of 2~>>15'. The
point where the truck wheels first left the rail is in the
sharpest part of the curve, and the south rails formed the
inside of the curve."
The
declaration contains eight counts, alleging several grounds
of negligence. Two only are now insisted upon, viz. defective
center castings, and a defective rail. The able circuit
judge, in directing a verdict, gave his reasons in the
following language upon the two grounds now insisted upon:
"The
plaintiff claims that the evidence would justify the jury
in finding the following conditions as the basis of the
alleged negligence: that the center castings, male and
female, of the engine in question, where they connect
together between the engine and truck, had become so worn
as to be elliptical or oblong instead of round, as they
should have been, and that the outer rail where the
derailment occurred was worn.
"In
disposing of the case by peremptory instructions to the
jury, it is the duty of the court to adopt that view of the
evidence most favorable to the plaintiff; to consider that
the jury might believe the testimony which makes most in
the plaintiff's favor, and disbelieve all that which
would make or tend to sustain the position of the
defendant. Taking that view of the case, it must be said
that the jury might be justified in finding that the
following conditions existed: First. That the center
castings were worn so as to become oblong
of
elliptical where they came together. Second. That the
center castings were not jacked up for inspection, or
inspected while separated, except when the engine was
jacked up for some other purpose than inspection; that
there was no inspection of them except when the engine was
jacked up and the parts were separated, except such
inspection as the engineer might make when he took the
engine out for his trip or returned with it.
"Assuming
these conditions to exist, we are confronted by the next
element of the plaintiff's case, which is this: Would
the jury be justified in finding from the evidence that any
or all of these conditions constituted negligence on the
part of the defendant?
"Now
whether the condition of the center castings and of the
worn rail was a negligent condition-a condition which the
defendant allowed in violation of its duty-is to be
determined from the evidence in the case. At the threshold
of that inquiry is presented the question: What is proper
evidence that the center castings or worn rail was in an
unsafe and dangerous condition?
"My
views with reference to this question, as applicable to
both the worn rail and the center castings, will be
sufficiently explained by a reference to the outer rail-the
worn rail-only. It is certain that every railroad rail
commences to wear as soon as its use for railroad purposes
begins, and continues the wear as long as that use
continues. It might be possible that any one could tell
that a rail just put down was not so worn as to be unsafe
and dangerous, or that any one could say that a rail nearly
worn out, or just hanging together, was unsafe and
dangerous; but, in my judgment, no person having only the
common intelligence of mankind could say, so as to make it
evidence, that a rail in the condition limited on the one
hand by the testimony of the plaintiff, and on the other by
the testimony of the defendant, was unsafe and dangerous or
not. I know I could not. I am confident that as intelligent
jurors as you are could not; nor could any man, however
intelligent he may be in a general way, tell with any great
certainty or confidence in his judgment. I am, therefore
convinced that information upon that subject-evidence which
should actuate us in reaching conclusions-can only be
sought from people who do know it, who have some unusual
intelligence and judgment upon the subject, by reason of
experience or special training. It is my
judgment, therefore, that the only evidence in the case
which it is proper for the jury to consider upon that
subject is the opinions of trained men in that field.
"Now,
looking at the testimony of the men who have been witnesses
here, who have shown an equipment or qualification to give
us information upon that subject, I am clearly of the
opinion that the jury would not be justified in finding
either that the rail was unsafe and dangerous, or that the
center casting was unsafe and dangerous, and therefore that
the evidence fails to prove, in either of these respects,
that the defendant has violated any duty, and is negligent.
"With
reference to the question of inspection of the castings:
There was by the evidence, and beyond dispute, an
inspection of these castings by men who appeared by the
evidence to have been competent inspectors, at the time
they were separated and the engine jacked up. There was no
inspection at any other time except that made by the
engineers who ran them. I understand the plaintiff's
contention to be that if the jury should find that these
castings were so worn on the 13th of September, 1895, as to
permit of side motion or shucking of an inch, or any
similar or lesser amount, that that condition must have
existed at the time of the last inspection, August 28th,
some two weeks before the accident; and that the jury would
be justified in finding that the defendant at that time
knew, by notice to its employ�s and inspectors, that the
center castings were so worn as to permit of shucking to a
considerable degree,-an inch or less,-and that, therefore,
the jury would be justified in finding that, with knowledge
of this fact, the defendant sent Mr. Peppett out with this
engine to his death. Now, I cannot adopt that view, or
permit the jury to, under the evidence in this case. In my
judgment, the evidence would not justify you in reaching
that conclusion; and being of that opinion, and clearly so,
it is my duty to so instruct you.
"Now,
gentlemen, the view I have taken and expressed of the
evidence with reference to these four different bases of
negligence makes it unnecessary to discuss them further,
and I come now to other necessary elements of the
plaintiff's case. And that is whether the conditions
named, if assumed to be proved, are shown by the evidence
to have been the cause of the derailment. And with
reference to that subject I instruct you that the evidence
does not, in my opinion, justify you in
finding or reaching that conclusion with reference to any
one of them.
"I
call your attention now, gentlemen, to another feature of
the case, which is, in my opinion, decisive of the
plaintiff's rights, when viewed with reference to
certain of these claimed bases of negligence. The plaintiff
was, and for many years had been, an engineer on the
Michigan Central Railroad. He was intrusted with its most
important service in that field, the running of engines
that drew its passenger trains, and thus held the lives of
many people in his hands,-a trust which nobody who has
testified in the case here has ventured to say he did not
faithfully fulfill, and which we must presume he faithfully
fulfilled. He had had wide experience; had been many years
running from the same roundhouse; had taken his engine and
returned it to the same place; was familiar with the
defendant's method of conducting its business, so far
as the business related to the inspection and the oiling
and the running of its engines. A part of his
duties was to inspect the engine himself before he took it
out upon the tracks to make his run and when he returned...
