Ragon v. Toledo, A.A. & N.M. Ry. Co.

• Citation: 56 N.W. 612,97 Mich. 265
• Parties: RAGON v. TOLEDO, A. A. & N.M. RY. CO.
• Decision Date: 27 October 1893
• Court: Supreme Court of Michigan

56 N.W. 612

97 Mich. 265

RAGON v. TOLEDO, A. A. & N.M. RY. CO.

Supreme Court of Michigan

October 27, 1893

Error to circuit court, Shiawassee county; William Newton, Judge.

Action by William Ragon against the Toledo, Ann Arbor & North Michigan Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Lyon & Hadsall, (Alex. F. Smith, of counsel,) for appellant.

Watson & Chapman, for appellee.

HOOKER, C.J.

The plaintiff, a brakeman upon defendant's freight train obtained judgment in the circuit court for an injury sustained by being run over by his train at Durand. Defendant's counsel contends that the judge should have directed a verdict against the plaintiff. It became necessary to leave a car upon the defendant's side track, and after setting the switch, the plaintiff signaled to the engineer to back up, which he did, and plaintiff stepped between the car and the tender to uncouple the car. Having some difficulty, and being near the switch, he stepped out to avoid the danger of walking over the switch bars, entering again after the car had passed them. No one saw the accident but plaintiff states that he stepped into an unfilled space between the ties, and before he could extricate his foot it was caught by the brake beam of the tender, at the heel, and his toe dragged along the track. At this time he was inside the main track, and, realizing that he was near the frog, he threw himself over the rail, sacrificing his foot, rather than his life. At the outset a question of variance arises. The first count of the declaration states that defendant permitted a deep hole or rut to exist in its tracks, into which plaintiff stepped. A second count states it as existing in the side track, between the ties, which space it was defendant's duty to fill with dirt. The alleged variance consists in the failure of the plaintiff to prove the existence of any definite deep hole in the track. He testifies that he did not see the hole, but that he stepped in one, and was caught. He attempts no description of its size or depth, further than to say that he thought he went down about eight inches, and claims to know there was one only by reason of having stepped into it. He does not fix the exact location of it. Other testimony on the part of the plaintiff tended to show that the spaces between the ties had not been filled with dirt in the vicinity of the place of the accident, and between the place where the foot was cut off and the switch. This testimony fairly tended to prove that the spaces were filled at the middle of the ties but at the rail the direct was from two to four inches below the top of the ties. From the very nature of railroads, the hole in the track mentioned in the declaration must have been between the ties, and evidence that for a space of 20 feet or more the ballast did not fill the spaces tended to prove the existence of a number of holes. Upon plaintiff's theory he stepped into but one hole, and the fact that he could not tell just where it was should not prevent recovery of his damages if he were lawfully entitled to them. If it turned out that there were several holes, that fact was not inconsistent with his claim, but tended to support the allegations that a hole existed, and that the spaces were not filled with dirt. It is not a case of proving a number of defects as a ground of inference that another distinct defect existed, but it was showing that several defects existed, one of which might have caused the injury.

This case went to the jury upon two possible theories, viz.: (1) That the plaintiff stepped into the hole, about eight inches deep, in defendant's track, which track was otherwise smooth and in good condition; (2) that the road bed was in bad condition for want of ballast, leaving places between the ties, into one of which plaintiff stepped, and that his foot was caught by reason of that fact. The first count was supported only by the testimony of the plaintiff, if it can be said to have been supported by proof. He testified that he stepped into a hole about eight inches deep. He said that, so far as he knew, the track was otherwise smooth and in good repair, and that he never saw the hole; that he only knew of its existence by stepping into it. No other evidence in the case shows the existence of any isolated or unusual hole, and this testimony was as consistent with one theory as the other, and does not tend to establish the theory of an isolated or unusual pitfall; and plaintiff's counsel seem to have relied upon an ability to show a general want of ballast upon the side track in the vicinity of the accident. Hence the jury should not have been permitted to consider this theory. Upon the other theory, there was proof that went so far as to show that the side track upon which the accident happened was not ballasted to the top of the ties for their whole length, but that, while the dirt covered the tie in the middle of the track, it sloped towards the sides of the track, so that at the rail it was from two to four inches below the iron, thus exposing the tie at that point to such depth, and that such was the condition in the vicinity of the accident, and had been since the road was constructed. This raises the questions: (1) Should the trial court have determined as matter of law that this road was in a reasonably good condition? (2) Was the plaintiff in a situation to charge his injury upon defendant?

Adjudications are not wanting upon the subject of the duties of masters in relation to the machinery and places for work furnished to servants, and, while a railroad is required to provide reasonably safe appliances, and keep them in repair, and provide a reasonably safe place for the employe, so as not to expose him to unnecessary danger, it is not within the province of courts or juries to prescribe the manner of using its tracks, or the character of its appliances, by verdicts and judgments which disregard its right to conduct its business in the manner usual with well-managed roads, and as good railroading requires. Accordingly it has been held that a railroad company is under no legal obligation to maintain for the protection of its employes a station agent at a flag station, where there was an unblocked siding; nor was it bound to change its manner of using brakes, or to adopt the most approved methods or appliances, or to discard what are not the safest known. Hewitt v. Railroad Co., 67 Mich. 61, 34 N.W. 659; Railroad Co. v. Gildersleeve, 33 Mich. 133; Illick v. Railroad Co., 67 Mich. 632, 35 N.W. 708. In the case of Batterson v. Railway Co., 53 Mich 125, 18 N.W. 584, a brakeman was injured while coupling cars at a place where the ties were raised above the surface of the ground. It was held that "the risk of such imperfections was one of the risks of the business. It is not shown or claimed that this track was unsafe for the ordinary uses of side tracks, and the accident did not arise from any such defect. The lay of the land was such as to be readily seen by any one who passed along the track at ordinary times. The plaintiff knew that the roadbed there was not ballasted, and was bound to know that there might be irregularities of surface anywhere. The chances of such accident were not such as to suggest danger as very likely. There was, of course, a probability that cars might have to be coupled at one place as well as another, and sometimes when there was not much daylight. But the company had a right to expect that every brakeman would use reasonable care in examining his footings and surroundings, and we think that they cannot be regarded as at fault for not guarding against an occurrence which was likely to happen in any place where the ground was uneven, and to completely insure against which would require a side track to be as expensively built as a main track. They had a right to rest on the probability that any one would know what was generally to be seen by his own observation, or by information from those who were on the spot working with him, and who might fairly be expected to do their duty." The opinion concludes with the following significant language: "There is much reason to regard the accident, from plaintiff's own testimony, as the immediate consequence of his hand slipping from the car, and of nothing else. But we place no stress upon this, because we do not think any case is made out of a violation of duty to the plaintiff on the part of his employers." In that case the court practically said that a jury should not be permitted to pass upon the question whether a railroad company owed a duty to its employes to ballast its side track where it bordered a pond, asserting that a brakeman ought to expect to be upon his guard against inequalities of surface and uneven places. It will not do to say that this decision was based upon the admitted knowledge of the plaintiff, for the court expressly asserts that no duty...