Perry v. Michigan Cent. R. Co.

• Decision Date: 31 December 1895
• Citation: 65 N.W. 608,108 Mich. 130
• Court: Michigan Supreme Court
• Parties: PERRY v. MICHIGAN CENT. R. CO.

65 N.W. 608

108 Mich. 130

PERRY v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

December 31, 1895

Error to circuit court, Jackson county; Erastus Peck, Judge.

Action by Frank Perry against the Michigan Central Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

McGrath C.J., and Montgomery, J., dissenting.

Parkinson & Campbell, for appellant.

Barkworth & Blair, for appellee.

LONG J.

Plaintiff a brakeman in the employ of the defendant, was injured at Grand Rapids, while engaged in coupling cars. The fourth count of the declaration sets out the claimed cause of action, and it is alleged that plaintiff was a brakeman on a freight train, in defendant's employ, and that in making up the train it was the duty of the defendant to put therein only safe and proper cars for transit, furnished and provided with safe and proper appliances to enable the plaintiff to perform his duty as a brakeman, in coupling and uncoupling the same, but that the defendant, disregarding its duty, put into said train a car, designated as a "Michigan Central Car No. 7,064," which was not in proper condition of repair, by reason of the draught-iron apparatus provided for the purpose of holding the draught iron in position, and to prevent a greater backward movement of said draught iron than of four inches, not being sufficient for that purpose, but on the contrary, permitted a backward movement of six inches so that because of said neglect of said defendant in properly inspecting said car, and not furnishing reasonably safe cars in said train, and safe appliances for coupling and uncoupling, plaintiff, while in the discharge of his duty, and without fault on his part, while in the act of coupling said car to another car in said train, was injured by said defective draught-iron apparatus permitting said draught iron to be drawn back by the draught iron on the car to a distance of six inches, and so far that the deadwood of the car to which he was coupling the same struck against and crushed his hand against the end of said car No. 7,064, breaking and bruising it, and rendering amputation necessary. The plaintiff had verdict and judgment for the sum of $5,000.

On the trial the plaintiff gave evidence tending to show that the train was made up the night before plaintiff was hurt. It was a long train, and, when made up, was in three sections, on account of street crossings. On the morning of the injury to plaintiff, the engine was backed down and attached to the forward section, and that section was backed down to the middle section, for the forward brakeman to make that coupling. It was down grade, and, the first time the forward brakeman tried to couple, he failed. The plaintiff says that "When they struck, he missed the coupling the first time, and I saw him come out, give the engineer the signal to back up again, and he went in again to make the coupling; and, just as I swung the engineer up, to go in and make my coupling, he came out from making his the second time, and he was there. Then I went in to make my coupling, and was caught in the act of coupling them. I was in there, I should judge, not to exceed three seconds." He was asked about the rate of speed in which the car came down to the one coupled to, and said: "It would be hard to state just the speed they were coming at. Just a fair rate of speed for coupling cars. Of course, sometimes they come awful slow, and then, again, they come faster than that. I consider that the speed was nothing more than the usual speed." He stated that there was coupled to the engine four loaded and two empty cars; that six loaded and four empty cars were in the middle section; that the front section was about 14 car-lengths from the middle section when it started to back; that it was from 20 feet to 30 rods away; that the cars struck with ordinary force. The way car was at the rear end of the rear section, and the brakes upon the cars of the rear section were set. He also testified on cross-examination that the forward brakeman failed in his first effort to set the brakes, and it set the middle section in motion, but not at a pretty rapid rate, though it was down grade. He says, further, that he turned his face towards the car that was standing still, so that, if the shock of coupling moved the train, he could move forward with it; that he did not see that anything was the matter with either car, and did not know that anything was the matter. There was other testimony on the part of the plaintiff tending to show that, when the engine backed down upon the middle section, it came down with some considerable force, and that the middle section came against the rear section with...