Peterson v. Chicago & N.W. Ry. Co.

• Citation: 67 Mich. 102,34 N.W. 260
• Parties: PETERSON v. CHICAGO & N.W. RY. CO.
• Decision Date: 06 October 1887
• Court: Supreme Court of Michigan

34 N.W. 260

67 Mich. 102

PETERSON v. CHICAGO & N.W. RY. CO.

Supreme Court of Michigan

October 6, 1887

Error to circuit court, Marquette county.

Hayden & Young, for plaintiff.

MORSE J.

The plaintiff is a native of Sweden, and on the sixth day of June, 1884, the date he was injured, about 27 years of age. He was employed by the defendant as a car-repairer, and worked in such employment for it from five to six weeks before he was hurt. He was hired by one Matthews, who was the boss carpenter of the defendant. Matthews directed him to report to John Carlson, who was foreman of a gang of car-repairers. He was told that Carlson would show him what to do. He had never worked at car-repairing or any other labor about railroads before. He had been in this country less than two years, and understood but little of the English language. Upon his reporting to Carlson, he was given a tool-box, and set to work repairing cars; putting in bolts plates, and the like items of repair. He testified that the only instructions or warning given him was that he should never go under the cars "when the red flag was not on."

The accident which occasioned the injury for which the plaintiff seeks to recover damages, in this suit, occurred in the lower yard of the defendant at Escanaba, where are located the ore-docks from which the iron ore mined near there is loaded into vessels. There were in this yard 10 tracks, all of which were used more or less as repair tracks. The method of doing business in the yard was substantially as follows: After the loaded cars had been run down from the docks, they were switched onto side tracks, and were then inspected by the repairers. The cars that were too much damaged to be repaired upon the tracks were marked "B.O.," (meaning bad order,) and were removed to the shops before the train started out. The others needing repair were attended to while standing on the repair tracks. These same tracks were also used for making up trains. The repair-men were furnished with red flags, one of which was to be placed at the head of the train looking towards the switch, and train-men were instructed in no case to run cars or engines against such cars, as the signal of the red flag so placed indicated that such cars were undergoing repair upon the track. There were two repair yards; one called the upper, and the other the lower, yard. The foreman of both yards was Thomas Leith. In his absence John Carlson was boss of the lower yard.

On the day of the injury from 30 to 35 cars were run in from the ore-docks upon one of these tracks, known as track No. 4. They were backed in from the north, and had at their south and rear end a caboose. Peterson had been at work all day commencing at 7 o'clock in the morning. The car-repairers, including plaintiff, about 3 o'clock in the afternoon had just completed repairing cars on a train standing upon another track, when Carlson said, "Come on, boys," and led the men to the cars on track No. 4. He said, "Boys, hurry up now; we have to leave in half an hour;" and put a red flag up on the front car of those then on the track. The men went to work at once, and as fast as they could. Peterson finished his work on one car, and passed by Carlson, who was fixing a brake-beam on one of the cars, and went to work on another car. He was sitting on the ground under the car, fastening the nuts upon some bolts. While the men were thus engaged upon these cars, another train, consisting of 30 or 35 cars, was backed down upon this same track, within from one to six car-lengths of the train being repaired. Carlson knew of this, but did not move or change the flag. He swears that Leith, the other foreman, and one Oscar Strom had gone ahead, and he supposed that they had moved the flag to the front end of the last train, or would do so; therefore he kept on at work, and paid no attention to the matter. The flag was not changed.

While these two sections were standing on this track, Oscar Strom, a car-repairer, and one of the gang under Carlson and Leith, passed along the section last placed upon the track, and inspected the cars. He marked one "B.O.," (bad order.) This car was about the sixth one from the front end of the section. Sylvester Geiger, a brakeman, going out that day, came through the yard, and, seeing this B.O. car, pulled the pin connecting it with the rear cars. He spoke to Murray, the yard-master, about it, and Murray ordered the switch-engine to take this car out. One Farnum, who was not a witness upon the trial, was running the switch-engine. He attached the engine to the first section, and ran the detached cars out upon another track, and the B.O. car was "kicked" upon it. He then ran the remaining five cars back upon track No. 4. As soon as he did this, he detached the engine from them. Geiger was on top of the cars, and supposed the engine was still attached to them. When he got near the rest of the section, to which he intended to couple these cars, he gave a signal for the engine to slow up. Discovering that the engine was not attached, when within about two car-lengths of the section, he jumped off and ran ahead to make the coupling. He testifies "they" [the cars] "just about got up with me,--they don't run very fast,--kept just about up with me; then somebody halloed at me to get out, and I was kind of scared, so I got out, and lost the coupling, and they struck, and run the others down against the 30 cars these car-repairers were working under." Without any warning to plaintiff, the car which he was under lunged back over him, dragging him on his back across his tool-chest, injuring his shoulder and spine, from which injury he claims a probable permanent disability. The testimony shows that it was not the duty of the plaintiff to move this flag, and he had been forbidden to touch it. The men having properly the charge of it were Leith and Carlson. No one else was authorized to touch it except by their order.

In the plaintiff's declaration the causes of negligence upon the part of the defendant were alleged as follows: (1) That defendant should have provided a watchman to warn plaintiff of the movement of the cars, and notify other employes of his whereabouts; (2)...