Town v. Michigan Cent. R. Co.
| Decision Date | 24 December 1890 |
| Citation | 47 N.W. 665,84 Mich. 214 |
| Court | Michigan Supreme Court |
| Parties | TOWN v. MICHIGAN CENT. R. CO. |
Error to circuit court, Monroe county; E. D. KINNE, Judge.
I. G. Humphrey, for appellant.
A C. Angell, (Ashley Pond, of counsel,) for appellee.
The plaintiff, a locomotive engineer upon a passenger train of the defendant at the time of his injury, brought suit in the Monroe circuit court to recover damages for such injury occasioned by the derailment and wrecking of his train. The court below directed a verdict for the defendant. The accident was caused by a misplaced switch, and happened on the evening of Sunday, April 29, 1883, in the township of La Salle, in Monroe county, and about 8:30 o'clock. At this place the line of the Lake Shore & Michigan Southern Railway Company runs parallel to, and a few rods west, of the line of the Michigan Central Company. Some years prior to this time there had been built a track to connect the tracks of the two railroads. The switch which caused the accident was formerly used in connection with this cross-over track, for transferring and passing trains from one road to the other. About a year before the accident, this connecting track went out of use, and the rails of the switch were securely spiked, and the switch abandoned, and the target and lights removed. Some three weeks prior to the injury to plaintiff, these spikes were removed, and the switch put into use again. This was done by trainmen, who were running local freight trains in at this place, loaded with material for the construction of side tracks on each side of the main track near this switch. It would appear from the testimony of Mr Sutherland, division superintendent of this part of the road that this re-opening of the switch for the use of these local trains in storing cars upon this cross-over track was authorized by, and known to him, but no notice was given to Mr. Town or any of the engineers or conductors on the passenger trains that the switch was in use again. The target and lights were not restored, nor was there any switch-tender, as there had been when the switch was in use before it was spiked. In the morning before the accident plaintiff had run his engine and train, consisting of two cars and a smoker, from Toledo to Detroit, as he was accustomed to do, and was returning to Toledo in the evening. His train was behind time, and he was running at the rate of 45 to 50 miles an hour. This was no faster than he was permitted to run, and there seems to be no claim that he was running faster than he ought, if there had been no switch in use there. The switch had been partly opened from some cause, and the rails so moved that the flange of the locomotive wheel struck the end of the easterly movable rail, about in the middle. The engine was thrown into the ditch and wrecked, and the plaintiff injured. The switch was found to be unlocked. There were two locks upon it,-one, a Michigan Central Railway lock which was hanging to a chain and not used, and the other, a Canada Southern Railway lock, was found upon the ground unlocked. Some of the witnesses testified that they examined this Canada Southern lock, and found no marks or bruises upon it; others swear that they examined it the next morning, and found it bruised as if it had been pounded open, and near by they found a fish plate which had brass upon it, appearing thereby to be the instrument with which the lock had been pounded open, the lock being made of brass. Michael Phelan, who was foreman of the gang of men who were grading for the side tracks, testified that the Canada Southern lock was used because he could not open the Michigan Central lock, and the roadmaster had the sectionmen at his request put on the Canada Southern lock as he (Phelan) had a key to that. It was customary when they went in or off of this cross-over track, to lock the switch. He is positive that he locked it between 4 and 6 o'clock P. M. when they quit work on the Saturday before this Sunday of the accident, and he did not unlock it afterwards. The plaintiff testified, as did also the conductor of his train, that after the switch was abandoned they received notice that the lights from that switch would be taken down, that the agent was removed and the station shut up. There had been before this a station there, called "Otter Creek," where there was an operator and...
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