Powers v. Thayer Lumber Co.

• Decision Date: 28 July 1892
• Citation: 52 N.W. 937,92 Mich. 533
• Court: Michigan Supreme Court
• Parties: POWERS v. THAYER LUMBER CO.

52 N.W. 937

92 Mich. 533

POWERS v. THAYER LUMBER CO.

Supreme Court of Michigan

July 28, 1892

Error to circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

Action by Mary Powers, administratrix of John Haney, deceased against the Thayer Lumber Company for the death of intestate. Judgment for plaintiff. Defendant brings error. Reversed.

Smith, Nims, Hoyt & Erwin, (Bunker &amp Carpenter, of counsel,) for appellant.

McGarry & McKnight, (De Long & O'Hara, of counsel,) for appellee.

GRANT, J, (after stating the facts.)

We need not determine the negligence of the defendant. Admitting that there were two concurrent causes, viz., the tree standing too near the track, and the improper loading, yet the fact remains that the deceased knew the former, and his clear duty was to so load his trains as to avoid the danger. The defective loading, for which he alone was responsible, was the proximate and dominant cause of the injury. The fact that 500 loaded trains had passed in safety is conclusive upon this point, and the sole responsibility for the injury cannot be thrown upon the defendant by saying that, in the judgment of the deceased, or of any one else, the car was properly ploaded. But for the tree, the car was undoubtedly properly loaded, but with the tree standing it is impossible to hold that it was properly loaded, or to hold it was a question of fact for the jury. Judgment reversed, and a new trial ordered.

MONTGOMERY, J., did not sit. MORSE, C.J., and LONG, J., concurred.

MCGRATH J.

I cannot agree with the majority of the court in the conclusions arrived at in this case. Thomas Kelly was defendant's superintendent, and William Wilson was its foreman. The tree in question was so near the track that the top of the cab of the engine passed within 5 inches of it. It was a dead white pine shell. The top of the cab was 6 feet wide, the bed of the logging cars was from 8 1/2 feet to 9 feet wide. The train approached the tree at the rate of 18 miles an hour. The engineer states: "We were accustomed to run out of there just as fast as we could. We couldn't make the grade otherwise." Kelly, who was called for defendant, says that it was usually necessary to clear a space of 12 feet for logging trains, and that this tree was within this space. This tree had been struck at least twice before this, and the attention of both superintendent and foreman had been called to that fact, not only by the deceased, but by the engineer and others. The superintendent himself testifies that on passing the tree on the afternoon of the day in question he noticed that the tree had been struck, called the foreman's attention to it, and ordered him to cut it. The engineer says that on the first trip that he made on this branch he told the foreman that the tree was "liable to kill some of us," and the foreman promised to have it cut. The engineer further says, "We touched the tree the first time we pulled out of there." On the morning of the day of the injury the tree was struck again, and the engineer says: "On the day of the injury we were talking about the tree,-kicking about it at the roundhouse at noon. Kelly, [the superintendent,] Haney, [the deceased,] and I were talking about it. On that occasion, it was said it ought to be cut. I said so, and Haney said so. Kelly said it ought to be cut; he would have it cut." Conway, one of defendant's witnesses, says that on the first trip, after dinner on the day Haney was hurt, Haney "spoke to Wilson, the foreman, and told him, he says, 'I would like to have the tree cut, Bill;' and Mr. Wilson said, 'All right."' It was not claimed by either the superintendent or the foreman before the injury that this tree was not necessarily dangerous; nor that it was only dangerous when the cars were improperly loaded; nor did either of them, when complained to about it, reply that it was not dangerous, or that the danger could be avoided by properly loading the cars. The proximate danger before the injury was the tree. No one at that time claimed or intimated that it could only be dangerous in view of carelessness in the loading of the cars. The superintendent and the foreman both knew that that tree had been struck at least twice, yet no suggestion was made by either of them to decedent or any other person that the cars had been improperly loaded, or that they should exercise more care in loading the cars, but each of them, when their attention was called to the fact, promised to have the tree removed.

Wilson the foreman, is the person who had charge of the making of the logging way. He had been directed by the superintendent to have this tree cut down. He it was to whom complaint had been made by the engineer and by deceased,-not once, but twice,-and had promised to have the tree cut down. It is this same Wilson, who now places the tree 4 1/2 feet beyond the rail, or just outside of the 12 feet which he was instructed to clear for the way, who testifies that this log was a churn-butted log; that it was crooked; that it had been sawed close to the ground; that the roots had been left on, and flared out; that this log lay out more than half way from the spikes; that it hung in the chain; that the log was 30 inches in...