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

• Decision Date: 12 December 1899
• Parties: POTTER v. DETROIT, G. H. & M. RY. CO.
• Court: Michigan Supreme Court

81 N.W. 80

122 Mich. 179

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

Supreme Court of Michigan

December 12, 1899

Error to circuit court, Shiawassee county; Stearns F. Smith, Judge.

Action by Frank A. Potter against the Detroit, Grand Haven &amp Milwaukee Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Grant C.J., and Long, J., dissenting.

E. W. Meddaugh (Geer & Williams, of counsel), for appellant.

Watson & Chapman, for appellee.

MONTGOMERY J.

The plaintiff was an employ� of the defendant as a freight brakeman. On the 17th of September, 1892, in the evening, at about 8:30, the train arrived at Milwaukee Junction, where two cars, standing on the 'East Y,' so called, were to be attached to the train, and pulled over a switch that led off the east main track to the east Y. Plaintiff turned the switch, gave the signal for the train to back down on the east Y, where the cars to be taken on were, preceded the train down the Y, and made the coupling. The conductor gave the signal to go ahead. Plaintiff testified that he started to climb up the side ladder of the car, and had gotten part way up, when he was struck by a telegraph pole, and injured somewhat seriously. The testimony shows that plaintiff had been in the employ of defendant as a spare brakeman for 9 days during March and 19 days during April of the same year and again from May 3d to some time in June, when he went to Pontiac; that he returned to work for the company in August and worked on a passenger train during that month, and until September 14th; that on the 15th of September he left Detroit for Holly on a freight train, returned to Detroit on the morning of the 16th, and was at Milwaukee Junction at about 4:50 a. m. While doing work as a freight conductor, the plaintiff passed Milwaukee Junction frequently, and took on cars there. He testified that he did not do any coupling at the east Y, but the testimony is quite convincing that he did. He testified that he had no knowledge that this pole was near enough to the track to be dangerous. From a judgment for plaintiff, defendant appealed.

It is contended that there was a fatal variance between the proof and the declaration. The declaration was as follows: 'And for that whereas, on, to wit, the 17th day of September, 1892, said plaintiff was, and for a long time previously thereto had been, employed by said defendant as brakeman on its cars at the yard at Milwaukee Junction, a station along the line of said railroad; and in the performance of the duties imposed on said plaintiff by said defendant in the employment aforesaid it became and was necessary for said plaintiff to ride back and forth in said employment on the side of the railway cars, clinging to the steps or ladders placed on the side of said cars by said company for that purpose, and which is the usual manner of performing and going to and from the work in and about which plaintiff was employed. * * * But, notwithstanding the duty aforesaid of the said defendant, it wholly neglected and refused to perform such duty toward said plaintiff, in that it placed and permitted to remain a post or telegraph pole so near one of the tracks of said railway in said yard that, while said plaintiff was in the performance of his duty, and while riding along on the side of one of defendant's cars, as aforesaid, he would be struck by said post or pole, and there was not sufficient room between said car and said post or pole to allow the body of said plaintiff, while engaged in his duties as aforesaid, to pass without injuring him. * * * And while in the performance of his duty, as aforesaid, and while riding on the side of a moving car, as aforesaid, and in the performance of such duty, he was struck by said post or telegraph pole, negligently left standing by said defendant so near its track in said yard, and was knocked off the side of said car,' etc. There was testimony that it was necessary to climb up the ladder of the cars while in motion, but the evidence did not show that the brakemen were expected to ride on the side of the cars except in this way. The testimony was not objected to, but at the close of the case the defendant's counsel asked an instruction that there was a fatal variance. We think the proofs tended to support the averments. It is true that the evidence failed to show that the plaintiff could have properly ridden continuously on the side of the car, but the proof indicated that he might lawfully ride there while ascending to the top of the car. We do not think there was such a variance as to work a surprise to defendant.

It is next contended that the plaintiff assumed the risk of contact with the telegraph pole, and that a verdict should be directed on that ground. In this connection it is insisted that the evidence shows conclusively that the plaintiff either knew, or should have known, of the proximity of this pole to the track, and testimony which is very convincing, if not conclusive, is cited to show that plaintiff had on previous occasions assisted in taking cars off the east Y; and if this fact were enough to establish that plaintiff either knew, or from the nature of his employment ought to know, that this pole was located so near the track as to be dangerous, we should be inclined to assent to the contention of counsel. But we are not prepared to say that, if the plaintiff had the opportunity which would be afforded by walking past this pole or riding back and forth on the top of cars, he was bound to make so close an inspection as would enable him to discover that the pole in question, instead of being in a safe location, was a few inches too near the track. It is, however, contended that as matter of law the plaintiff must be held to have assumed the risk of such structures near the track as the pole in question. It is said that the principle which plaintiff counsel invoke, that it is the duty of the master to provide a safe place for his employ�s to work, is not applicable; that 'that principle, properly applied, has reference solely to the adequacy of a structure or device that the employer has provided for the use of the employ� and in or upon which the emplo�PCITE, 122 Mich. 183>>employe has to do his work, or to the hazards to which the employ� may be subjected through the employer's negligence in conducting operations on or about the place while the employ� is at work.' If we correctly understand this contention, we think it makes for a rule much too narrow. A place may be rendered unsafe as well by being so placed with reference to adjacent objects as by inherent defects in the place or device itself. We have no hesitancy in saying that, if we leave aside the question of assumed risk for the moment, a railroad company which, without necessity, locates telegraph poles so near to the track over which its employ�s are required to operate its trains as to render it unsafe for such employ�s to operate the trains in the ordinary way, without meeting with injury from such structures, has failed in its duty to provide a safe place. Walsh v. Navigation Co., 10 Or. 250; Railroad Co. v. Welch, 52 Ill. 183; Johnson v. Railway Co., 43 Minn. 53, 44 N.W. 884; Railway Co. v. Oram, 49 Tex. 341; Railroad Co. v. Russell, 91 Ill. 298; Whipple v. Railroad Co. (R. L.) 35 A. 305; Scanlon v. Railroad Co., 147 Mass. 484, 18 N.E. 209; Sweet v. Railroad Co., 87 Mich. 559, 49 N.W. 882; Allen v. Railway Co. (Iowa) 11 N.W. 614. The employ� is, however, held to assume the risk of injury from such structures as he knows, or ought in the exercise of common prudence to have been acquainted with, and the difficulty in any given case is chiefly in determining whether the obstruction belongs to this category. In applying the rule of assumed risks the courts have not always been consistent, and different courtshis employ�s. At least, the case has not have reached different results on the same cases may be of interest.

In Massachusetts, in Lovejoy v. Railroad Co., 125 Mass 79, it appeared that a signal post was placed three feet and eight inches from the track, and plaintiff, an engineer, while leaning out of his cab, looking for a signal, came in contact with it, and was injured. It appeared that the obstruction of 46 bridges, numerous buildings, entraces to stations, and other structures on the line of the defendant's road, were the same distance from the track. These facts were known to the plaintiff, although he had not, previously to the injury, noticed this particular post. It was held that, if there was any injury to the plaintiff while he was in the performance of his duty from the structures so placed, it was a risk he assumed. The court said, 'He knew the manner in which the road was constructed, the proximity to the track of these structures, and the method employed in the management of the train.' In Fisk v. Railroad Co., 158 Mass. 238, 33 N.E. 510, it appeared that plaintiff, a freight brakeman, was injured by contact with an overhanging awning at a station. All the principal stations on the road had such awnings, and plaintiff knew there was an awning at the station where he received his injuries. It was held that he assumed the risk. The case of Scanlon v. Railroad Co., supra, illustrates the distinction made by the Massachusetts court. Plaintiff, a brakeman, came in contact with a signal post 3 1/2 feet from the track. He had no previous knowledge of the proximity of this post or other objects to the track. Defendant showed that an examination of the permanent structures along the line of the road disclosed that several structures were as near the track as the post in question, but the court said: 'The danger--the risk which it is claimed the plaintiff assumed--is not the particular danger from...