Roepcke v. Michigan Cent. R. Co.

• Decision Date: 02 June 1894
• Citation: 59 N.W. 243,100 Mich. 541
• Court: Michigan Supreme Court
• Parties: ROEPCKE v. MICHIGAN CENT. R. CO.

59 N.W. 243

100 Mich. 541

ROEPCKE v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

June 2, 1894

Error to circuit court, Washtenaw county; Edward D. Kinne, Judge.

Action by Lewis B. Roepcke, by Frederick H. Roepcke, his next friend, against the Michigan Central Railroad Company, for personal injuries caused by defendant's negligence. There was a judgment for plaintiff, and defendant brings error. Reversed.

John F. Lawrence, for appellant.

Lehman Bros. & Cavanaugh, for appellee.

GRANT J.

Plaintiff was a member of one of defendant's section gangs at work in the vicinity of Dexter. The defendant was engaged in the construction of a bridge and culvert, and for that purpose had hauled upon flat cars oak timbers from 30 to 40 feet long, and from 12 to 15 inches in diameter. Plaintiff was 19 years of age, and possessed of average intelligence. Had worked for the defendant two weeks in the fall of 1889, and two weeks in the spring of 1890, previous to the accident which occurred on April 10th. Aside from this, most of his time appears to have been spent upon a farm. His work, while in the defendant's employ, had consisted in shoveling dirt, raising the track, and putting gravel under the ties. Just previous to the accident, he was engaged in removing stones. While thus engaged his gang was ordered by the roadmaster to go to assist in unloading these logs. Some eight or ten workmen were engaged in this work. Plaintiff, with others, went upon the cars to roll off the logs. As the logs rolled off, some fell, and rested diagonally across the others. The road master ordered plaintiff and some of the others to get upon the pile, and arrange them so they would lie parallel. Plaintiff complied with the order, and, while thus at work, a log rolled upon him, breaking his leg.

The declaration contains two counts, which however, are substantially alike. The duty alleged will appear from the negligence charged. After alleging the duty the declaration alleges that the defendant "wrongfully knowingly, recklessly, carelessly, and negligently ordered and directed plaintiff to go to the side of said embankment, and among said timbers,-a place of danger,-without notice, preparation, warning, or instruction, and did not furnish him a reasonably safe place in which to work; that he had no experience in said work, and was wholly ignorant of the danger to which he was exposed, and had no time to investigate the propriety of such order, and no conception of the danger incident to the obeying thereof, all of which the defendant well knew; that acting under said order, and inexperienced as he was, and not understanding the danger to which he was exposed, and without fault or neglect on his part, he attempted to perform the order; and that while so doing, and without any notice or instruction or warning of danger, said timber moved upon him, caught his left leg, and broke the same above the ankle." The testimony on the part of the plaintiff shows that the order was twice repeated before being complied with. He described the manner of the accident as follows: "I got somewhere about the middle of a stick of timber, and when I went to take hold of it they rolled them down from the car, and that set the other timbers in motion, and it struck my leg. I saw it coming, and was trying to get away from it, and get over it, and it struck my left leg, and rolled upon it and broke it." On cross-examination he testified: "I expected it [the log] would come down easy enough so I would not have to get out of the way. I supposed it would come easy, so I could hold it. Q. Then all the men who got off this log got hold of it from the north side? A. I don't know as anybody got hold of it. They started it, when those fellows above told them to keep them coming, the mail was due." At the request of the defendant, plaintiff, shortly after the accident, made a written statement as to how it occurred, in which he said: "Mr. Hickey asked us to roll the poles that catched. Five or six of us got in front of the outside stick to roll it out. It started sooner than I thought it would, it being down hill, and, before I could get out of the way from it, it rolled over my leg, and broke my leg four inches above the ankle. We could not get behind it, as the other sticks were in the way." One West, who was engaged in the work, testified as to the order of the road master, and that he told him that it was not a safe place, and witness went to the end of the logs, but did not get among them. This witness does not state whether the log that rolled on plaintiff was one that rolled from the car while he was at work, or the one at which the plaintiff was at work. Samuel Molock testified that the road master told a part of the men "to get off...