Ramsay v. C.K. Eddy & Sons

• Decision Date: 06 March 1900
• Citation: 82 N.W. 127,123 Mich. 158
• Parties: RAMSAY v. C. K. EDDY & SONS.
• Court: Michigan Supreme Court

82 N.W. 127

123 Mich. 158

RAMSAY v. C. K. EDDY & SONS.

Supreme Court of Michigan

March 6, 1900

Error to circuit court, Saginaw county; Eugene Wilber, Judge.

Action by Clark R. Ramsay against C. K. Eddy & Sons. From a judgment for plaintiff, defendant brings error. Reversed.

The following is the plat referred to in the opinion:

RPT.CC.1900000822.00010

(Image Omitted)

Moore J., dissenting.

Humphrey & Grant, for appellant.

Crane &amp Crane and James H. Davitt, for appellee.

HOOKER, J.

I am of the opinion that contributory negligence upon the part of the plaintiff is conclusively shown by his own testimony. For that reason the judgment should be reversed, and no new trial ordered,

MOORE, J. (dissenting).

Plaintiff a brakeman upon a freight train, recovered judgment against defendant for personal injuries received by him while at work in defendant's yard. From this judgment defendant appeals.

A reference to the annexed plat will help to understand the situation. The railroad tracks indicated upon the plat are in the yard owned by the defendant. Plaintiff was in the employ of the railroad company, which was, at the request of the defendant, putting a furniture car on the track for the use of defendant.

The plaintiff was an experienced brakeman and switchman, but was not familiar with this yard. The locomotive, a flat car, and the furniture car were backed from the south. The brakeman threw switch 6, and, as the furniture car passed him, he climbed upon a ladder at the side, and while there was caught by three or four boards, which projected six or eight inches beyond the rest of a pile of lumber which was near the railroad, and was injured. It is the claim of the defendant that it was the duty of the plaintiff to look and see whether he could pass the lumber safely before climbing upon the ladder, and that he did look, and thought he could pass the lumber safely, when in fact he could not; that he assumed the risk, and that he cannot now complain,--citing Grandorf v. Railway Co. (Mich.) 71 N.W. 844; Illick v. Railroad Co., 67 Mich. 636, 35 N.W. 708; and many other cases. In all of the cases cited, the danger was obvious. It is the claim of the plaintiff that the danger in this case was not apparent; that he looked at the lumber pile, and there was nothing in its appearance to indicate he could not pass it safely; that the lumber had been piled more than a year; that the projecting boards were weather-stained and were shaded by the boards higher up in the pile to the north and west of them, so that, looking from where he was, the projections were not apparent, and the pile appeared to be one that could be passed safely. There was testimony in addition to his own which tended to sustain this claim. He also claimed there was a slight curve in the track at this point, and that, had he been upon the ladder upon the other side of the car, he could not have been seen by the engineer; and that further down the track were an overhead pipe and tramway, which crossed the track, and would require him to get down from the car; that good railroading required he should be where he was that he might warn persons who were crossing the roads in the yard of the approaching train, and that he might signal the engineer. It was also the claim of defendant that plaintiff was guilty of contributory negligence, and a verdict should have been directed in favor of defendant.

RPT.CC.1900000822.00020

(Image Omitted)

The court charged the jury as follows: 'The plaintiff, with other employ�s of the F. & P. M. Railroad, was, at the time of the accident, upon the premises of the defendant, at its request, to place this car in position. Under such circumstances it was the duty of the defendant to see that its premises were in a reasonably safe condition for doing the work. On the other hand, it was the duty of the plaintiff, while in the employ of the railroad company, to exercise due and reasonable care in avoiding danger. And the degree of care must be in proportion to the nature of the danger to be encountered, and the extent of the risk. Reasonable care in such a case required the plaintiff to be diligent in the use of any and all appliances and facilities necessary in ascertaining and avoiding danger. Anything less than this must be regarded as negligence on the part of the plaintiff; and, whenever such negligence contributes to produce the injury complained of, the plaintiff cannot recover for such injury. In order for the plaintiff to recover for such injury, it is just as essential that he show himself without negligence at the time of the happening of the accident as it is for him to show that the defendant was negligent; and the burden of proof is upon him to establish both propositions. Was the plaintiff negligent in not seeing the projecting boards that caused the injury? If so, then he cannot recover. Did he exercise care and caution in ascertaining whether it was safe for him to ride upon the car past this pile of lumber, that he was in duty bound to exercise under the instructions I have given you? If he did not, then your verdict must be for the defendant irrespective of what you find the other facts to be. The defendant claims that the projecting boards were in plain view; that, if the plaintiff had looked, he would have seen them; that there was nothing deceptive in their appearance or location. If this is true, he should have discovered them, and avoided the danger. Defendant also claims that this pile of lumber was so near the track that the plaintiff could not safely ride past it upon the side of the car, irrespective of these projecting boards; and they claim, too, that, if he had given it proper attention, he would have seen that this was true. If this is the fact, and the plaintiff concluded to take his chances, seeing just what the situation was, then he is not entitled to recover, even if the projecting boards were in a position where he could not readily discover them, and did not see them. If you find that the plaintiff did not exercise reasonable care in avoiding this danger, then you would have no occasion to consider the case further, and your verdict would be for the defendant. But, if you should find in favor of the plaintiff upon this proposition, you should then determine whether or not the premises of the defendant were in a reasonably safe condition for the plaintiff to do his work. It is an admitted fact in the case that the lumber was piled by one of the employ�s of the defendant. The knowledge of the employ� as to the manner of piling would be the knowledge of the defendant. Was it in reasonably safe condition? I submit this as a question of fact for you to find. Take into consideration all of the facts bearing upon it,--its closeness to the railroad tracks and switch; the manner in which the switching is usually done at that place; the position of the switchman on the car, if he rides; also whether the defect in the piling was so open and notorious as of itself to constitute a warning to the switchman not to attempt to ride past it upon the side of the car. If you should find that the defendant was negligent in this, and also that the plaintiff himself was not guilty of negligence that contributed to the injury, then you should consider the plaintiff's injuries, and the damage he is entitled to, bearing in mind that your verdict must be based upon the view, not of punishing the defendant, but solely upon compensating the plaintiff for the injuries he sustained.' There was evidence tending to show that plaintiff exercised due and reasonable care, and that no negligence of his contributed to the injury. The evidence was disputed by defendant.

It was the duty of Mr. Ramsay to exercise reasonable care and diligence to ascertain whether it was safe for him to do what he did or not. Indeed, he had the greatest incentive to caution, for he was a man of sufficient sense to know that if there was not sufficient space between the car and the lumber for him to pass, he was in danger of getting seriously hurt. I do not think the court can say, or that it ought to say, that, under the showing made in this case, he did not exercise proper care. That is a question within the province of the jury. Improvement Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403. The record shows the foundations of this lumber pile were a proper distance from the track, and, if the lumber had been properly piled, it would not have been dangerous. The danger came because three boards projected beyond the body of the pile. It was the claim of the plaintiff that the northwest corner of the pile did not recede from the track, as did the remaining portion of the pile; that this side of the pile was ragged and uneven in appearance; and that all of the pile, including these boards, were weather-stained, so it was not easy to discern that these boards projected farther than the others; and that the boards were a concealed danger. The plaintiff testified that before going upon the car he looked, and did not see the boards...