Tubbs v. Michigan Cent. R. Co.

• Decision Date: 19 November 1895
• Citation: 107 Mich. 108,64 N.W. 1061
• Court: Michigan Supreme Court
• Parties: TUBBS v. MICHIGAN CENT. R. CO.

64 N.W. 1061

107 Mich. 108

TUBBS v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

November 19, 1895

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

Action by Lucius Tubbs against the Michigan Central Railroad Company.Judgment for defendant.Plaintiff brings error.Reversed.

A. J. Sawyer, for appellant.

John F. Lawrence, for appellee.

MONTGOMERY, J.

This is an action for negligent injury.The plaintiff has for several years been employed in receiving the mail from mail trains run on the defendant road, and transporting it to the post office at the village of Dexter.At the Dexter station the defendant's road consisted of a double track, which extended from a point a short distance east of the station westward, at least as far as Jackson; but from the point of convergence east of and near the station there was but a single track extending eastward.The station at Dexter was a short distance south of the track.In the conduct of defendant's business, western-bound trains were run on the north track, and eastward-bound trains on the south track.The passengers to and from and others having business at the west-bound trains were required to cross the south track to reach the train.The injury occurred to the plaintiff while receiving mail from the westward-bound train which was called the "Grand Rapids Train," or "No. 15."While thus engaged, he was struck by the engine of the eastward-bound train, known as "No 20."Plaintiff offered testimony that tended to show that No. 15 was due at Dexter at 6:07, and that No. 20 was due there at about 6:15, but, as it did not stop at Dexter had no scheduled time for this station; that for some years at least, prior to the injury, the custom was for No. 20 to approach the the station under complete control of the engineer; and, if No. 15 was at the station, No. 20 stopped west of the station until No. 15 discharged her passengers, mail, and express, when No. 20 would pass through on the south track; if No. 15 had not yet reached the station, No. 20 would run past the station, and wait on the south track, east of the station, until No. 15 came in, when No. 20 would pull out east.There is also testimony tending to show that No. 20 was not accustomed to pass the station east without a signal.The testimony of the plaintiff shows that he was familiar with the custom of No. 20 stopping west of the station while No. 15 discharged and received passengers; that he had been to the train every day for years prior to the injury, and had never known No. 20 to pull up to or pass the station while No. 15 was opposite the station, discharging passengers, but, on the contrary, it was of frequent occurrence for No. 20 to stop west of the station for that purpose.On the occasion in question (September 29, 1892), plaintiff came to the depot on his usual mission, heard and saw No. 15 coming, wheeled his truck from the east corner of the station house to a point some little distance west of the station house, and a point where he was in the habit of receiving mail and express, seated himself on his truck, and awaited the arrival of No. 15. No. 15 went a little further west than was customary.The mail messenger threw off two sacks of mail, one of which rolled on the north rail of the south track.Plaintiff sprang to get it, to throw it on the truck, and, while in the act of doing so, was struck by No. 20 going east.He testifies that he did not know of the approach of No. 20; that it was his intention to throw the mail across the track, and then run up beside train No. 15, get his express, and step across to the walk, out of the way of No. 20 or any other train that came along at that time, as he supposed it would soon.The evidence tends to show that, when plaintiff was struck by No. 20, No. 15 was still in motion, just coming to a stop.There was testimony that, from a point 200 feet west of the station, the engineer of No. 20 could have seen the headlight of No. 15, 1,500 feet to the east; and it is contended that, knowing of the custom of No. 15 to stop on the north track, and of the necessity of those having business at the train, as well as passengers, to cross the south track, it was an act of negligence for train No. 20 to run between train No. 15 and the station house before the business of discharging passengers, mail, etc., was completed.The circuit judge, while expressing doubt as to the negligence of the defendant, directed a verdict on the ground that plaintiff was guilty of contributory negligence.

In determining this question, the most favorable construction to which plaintiff's testimony is open must be given.In view of this testimony was it negligence, as a matter of law, for plaintiff to fail to look to the west, or had he a right to rely upon defendant's train not passing over the south track while he was engaged in the manner stated?This precise question has never before been considered in this court, but cases similar have arisen in at least four other states.The leading case on this point is Klein v. Jewett,26 N. J. Eq. 474.In that case passengers were required to pass over a track to reach that upon which an outgoing train awaited them.The plaintiff, on hearing the signal, approach the train he intended to take passage on, stepped from the platform to the track just as the passenger train stopped, and was making his way from the point where he first stepped on the track to the platform, between the second and last car, with his back to the east, when the locomotive of a western-bound train, running on the track between the station and the standing train, struck him.Plaintiff was permitted to recover, the court saying: "The plaintiff, in attempting to pass from the depot to the cars, in the absence of warning, had a right to regard himself in a place of safety, where he had a right to give his whole attention to the business he had in hand, and was not bound to look out for extraordinary dangers occasioned by negligence of the persons in charge of the road."The court in that case recognized...