Schaible v. Lake Shore & M.S. Ry. Co.
| Decision Date | 27 October 1893 |
| Parties | SCHAIBLE v. LAKE SHORE & M. S. R. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Washtenaw county; Edward D. Kinne, Judge.
Action by Fred S. Schaible against the Lake Shore & Michigan Southern Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error. Reversed.
C. E Weaver, (Geo. C. Greene and O. G. Getzen-Danner, of counsel,) for appellant.
Lehman Bros. & Cavanaugh, for appellee.
Plaintiff was employed by the defendant company as a section hand. On the day of the injury for which this action was brought he was working in defendant's yard at Manchester, scuffing on a side track. While at work in the yard, certain cars had been backed onto this track by the use of an engine. After this had been done, the plaintiff claims he supposed the train was about to pull out for Jackson, as he heard the bell of the engine ringing, and the engine was moving in that direction. He continued his work, when, unobserved by him, a car which had been shunted or kicked by the engine onto that track came down upon him unattended, and caused the injury for which a recovery of $900 was had in the court below. The declaration contains six counts. When proofs were offered on the trial by the plaintiff, counsel for defendant objected on the ground that the declaration did not state a cause of action. No reasons were given by counsel, and the defect claimed was not pointed out to the court below. The court charged the jury that if they found that the trainmen knew that the trackmen, including the plaintiff, were at work on the track scuffing, and shunted and kicked the car down the grade without warning or notice, and without a guard brakeman, or lookout of any kind upon the car, and sent the car against the plaintiff, then the trainmen were guilty of negligence; and if the railroad company knew of or authorized that manner of doing business, then the railroad company would be liable in the action. This statement of the law was given with the further instruction that the plaintiff must show that he was free from fault on his part. It appeared upon the trial from the testimony of defendant's witnesses that it had been the practice of the company for years to shunt cars in this way over tracks in their yards, and the claim was made that it was the duty of the plaintiff to have kept watch at all times, and to have protected himself; that when he entered the employ of the company he knew the dangers of such employment, and assumed the risks incident thereto; and also that the accident was caused by a fellow servant. The charge of the court places the liability of the defendant upon the ground that it was negligence per se to shunt cars in a railroad yard, thus moving them from place to place by kicking them backward by the engine, unattended, without a brakeman or lookout. We held in Schindler v. Railroad Co., 87 Mich. 410, 49 N.W. 670, that it was gross negligence to shunt cars across a highway unattended, in face of the fact that people were constantly passing and repassing. In that case a young boy was injured while crossing the track on the highway. That case was decided upon its own peculiar facts. In the present case the plaintiff was an employe of the defendant company, and had knowledge of the manner in which the work was done. He had worked there for several months during two seasons, and it is shown that during all that time the company had been accustomed to make up its trains in that manner. He says: "We had to watch out for ourselves, because we could...
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