Sweet v. Michigan Cent. R. Co.
| Decision Date | 09 October 1891 |
| Citation | 49 N.W. 882,87 Mich. 559 |
| Court | Michigan Supreme Court |
| Parties | SWEET v. MICHIGAN CENT. R. CO. |
Error to circuit court, Washtenaw county; E. D. KINNE, Judge.
Action by Zenas Sweet, administrator of the estate of John H. Sweet deceased, against the Michigan Central Railroad Company for the negligent killing of deceased. Judgment for plaintiff and defendant appeals. Affirmed.
Henry Russell, (Ashley Pond, of counsel,) for appellant.
Sawyer & Knowlton, for appellee.
This is an action for damages based on the negligent killing of plaintiff's intestate. The plaintiff had verdict and judgment for $5,000. The facts are substantially as follows A part of defendant's station yards or grounds at Detroit is called the "Bay City Yard," and in the Bay City yard is a side track called the "Bentley Siding." On this track stands a long, low, irregular building, called "Bentley's Oil-Works" or "Sheds." This side track is constructed and used for the Bentley oil-works, and nothing else. It is 47 feet from the switch to the south end of the building. The length of a car is 34 feet. The track upon which this building is located runs somewhat in a circle, but its general course is north and south. The switch is south or southwest of the building. The oil shed or building stands on the easterly or northerly side, and the main track is on the west side of the Bentley side track. The top of a car is higher than the roof of this shed or building. The building is constructed in sections. The second section cannot be seen from the south end, when standing at the switch. It sets back a foot or two from the other portion of the building. The office of the building is in that jog. Passing that, there is another building at the end of it. The south end of this building, or tank, or shed, is not perpendicular. The space between the side of the car while passing and the building is 16 inches at the south end, and, as the car goes north, it grows smaller, until the end of the section of the house is reached, when the space closes up to 13 inches. This is occasioned partly by the building righting up, and becoming nearer perpendicular at the north end than it is at the south end. At the south end of the building there are double doors. Both swing out. At the time of the accident these doors seem to have been open, thus acting as the lips of a funnel, and might have presented a very deceiving appearance. The doors are over 5 feet wide, and, when open, leave only a space of 42 feet from the switch to the entrance of the funnel. This building has been standing there for 5 years, and was wholly upon the grounds of the defendant. Plaintiff's intestate was 25 years old at the time of his death. He was married, and left surviving him one child, a daughter 3 years old, and his widow, Louise Sweet. He was a saving, prudent man, and was receiving $60 a month at the time of his death. He had been in the employ of the defendant some time as brakeman, on the eastern division of the main line, from Jackson to Detroit. While on that division he received an injury. After his injury he went into the employ of the defendant again, as switchman, in its yards at Detroit, and was in the employ of the defendant in that capacity a month or six weeks before the accident. The switching team, of which Sweet was a member, was composed of Frasier, Maroney, and Sweet. Their duties as a switching team extended to any part of the company's yard at Detroit, but their chief labors seem to have been expended in that portion of the defendant's yards called the "Bay City Yards." There is no direct evidence that Sweet was ever on the Bentley siding before the accident. There is no evidence that his attention had ever been called to the dangerous proximity of the building, but there was evidence tending to show that cars were probably shipped in there from once to twice a day. There is no claim that he was ever informed, by any one, that the place was dangerous, or of the location of the shed, as connected with the railroad track.
The manner of the accident was as follows: The switching team came down from Bay City junction, on the main track, with two cars attached to the engine, and backed in on the Bentley siding, and coupled onto a car; then pulled back over the switch, and onto the main track. Sweet stood at the switch, and, as the train pulled out from the switch, threw it back on the main line. The engine then pushed the car that had been taken from the siding down the main line, past the switch. Maroney rode that car down the main line, and stopped it. The engine then pulled up beyond the switch, and again onto the main line, and Sweet threw the switch back to the Bentley siding, and stood at the switch. The engineer then pushed a stock-car from the siding. Frasier cut off the car, and the engineer pushed it down the track onto the Bentley siding, following it with the engine, and, as the north end of the car passed the switch, Sweet got onto it. He was then upon the east side of it, next the building. When Sweet got onto the north end of the car naturally he was looking south towards the approaching car, as it came to the switch, and when he got onto it his face would be away from the building. Frasier was on the south end. Seeing Sweet get on, he (Frasier) dropped off at the switch. The car thus cut off was a Michigan Central combination stock-car. These cars are slatted lengthwise. The posts or studs upon which the slats are nailed are on the outside of the car. There are two ladders to this car, placed upon opposite sides, near the opposite ends of the car. In order to stop the car, it was necessary to reach the top of it by these ladders. These cars are more difficult to mount than an ordinary box-car, for the reason that the slats are left apart, and, unless special attention is paid, the foot is liable to strike through the holes in the side of the car, and slip off the rounds of the ladder, and it therefore draws a person's attention more closely, when mounting, than it would on a box-car. In the division of the work, it is the practice of the switchman who throws the switch to mount the car that is kicked on the siding as it passes him, set the brakes, and stop it at the place desired; and for the switchman who cuts off the car to drop off at the switch, and throw it back to the main line; and this seems to have been attempted in this case. At this time Frasier cut off this car, rode it down to the switch, and, looking through the slats of the car saw Sweet mount upon the other side. Frasier then dropped off at the switch, to throw it back upon the main line. The engine was pushing the car, and the fireman did not know it was cut off. It was Sweet's duty to get on, and Frasier's duty to get off, at the switch, in the manner it was done; and, according to the custom of doing the work, it was the duty of one of them to get on the car at any event. There was testimony tending to show that generally, in handling cars upon this side track, the men work upon the side of the cars away from the building. The car was 34 feet long, it was only 47 feet from the switch to the building, and the door, being open, reduced that distance 5 feet. From the switch to the funnel, therefore, was only 42 feet. This car was going as fast as a man could walk. Sweet, therefore, only had the time it would take a man to walk 42 feet from the time he attempted to mount the car until he was crushed. As he attempted to mount the car, he took hold of one of the rounds of the ladder, and put either his foot or his knee upon the step of the car,-that is, the bottom step upon the car,-and looked towards the car. He had only straightened up by the side of the car, when the fireman, seeing his danger, hallooed to him to look out for the shed. He heard the noise, but did not comprehend what he said. He looked up, and smiled to the fireman, as though he thought he was joking, and in an instant was between the cars and the shed, was rolled the distance of the first section of the oil-shed between the car and the shed, and when he reached the end of that section he dropped down to the ground, and striking upon his feet, with his back against the shed. stood in that position while the engine stopped, and the fireman got down and started to go to him, but before he got to him he fell upon the ground, striking his head against the rail. They picked him up, and carried him into Bentley's oil-works, and laid him on the floor. He lived about 30 minutes, and said to Frasier, "Take me home to my wife."
The negligence of the defendant is apparent, and does not seem to be disputed. It was the duty of the defendant to provide a safe place for the men to work in the yards. There is shown no excuse for the laying of this track so close to the building. It was unsafe and dangerous. Indeed, the claim made by defendant's counsel is that it was so obviously unsafe that the plaintiff's intestate was presumed as a matter of law to have taken notice of it. The building was on defendant's premises, and under its control, and its tracks, at least, could have been changed to prevent the danger. The principal error assigned against the verdict is that the plaintiff's intestate was guilty of contributory negligence as a matter of law, because by reasonable observation he might have known the danger incident to the situation, and therefore he assumed the risk and no recovery can be had. The court instructed the jury upon this question as follows: ...
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