Turner v. Detroit Southern R. Co.

• Decision Date: 07 July 1904
• Citation: 100 N.W. 268,137 Mich. 142
• Court: Michigan Supreme Court
• Parties: TURNER v. DETROIT SOUTHERN R. CO.

100 N.W. 268

137 Mich. 142

TURNER v. DETROIT SOUTHERN R. CO.

Supreme Court of Michigan

July 7, 1904

Error to Circuit Court, Lenawee County; Guy M. Chester, Judge.

Action by Ernest W. Turner against the Detroit Southern Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Dickinson, Stevenson, Cullen, Warren & Butzel, for appellant.

Fellows & Chandler, for appellee.

CARPENTER J.

In October, 1901, plaintiff was a section man in defendant's employ. The gang of which he was a member was engaged in taking out old ties and replacing them with new. The projecting step of a caboose on a passing train hit one of the new ties strewn along the track, and threw it with great force against plaintiff, who was standing near the passing train, and seriously injured him. He brought this suit to recover compensation, claiming that defendant was negligent in permitting said step to project so far from the caboose. The issue was submitted to a jury, who rendered a verdict in favor of plaintiff. We are asked to reverse the judgment in plaintiff's favor upon several grounds, but, in our judgment, we need to consider but one: Was there any evidence that defendant was negligent in permitting the step in question to project from the caboose?

Defendant had four cabooses with projecting steps precisely like that in question. These cabooses were built over box freight cars with doors at either end and at the sides. To enable the train crew to conveniently get in and out, steps made of strap iron, mortised to the sill, with the lower ends bent outward supporting a plank step, were suspended at the sides. This lower step was 20 inches below the floor of the car and, according to plaintiff's testimony, projected 15 inches beyond the side. These cabooses had been used by defendant during the construction of its road and ever afterwards--for four years or more--and plaintiff's injury was the first known injury or accident resulting from their use. The cabooses passed back and forth over the road in daily use, and were generally known to the men in its employ. They were not, however, known to the plaintiff, who had been in defendant's employ but 10 days. The same or similar type of cabooses with the projecting steps were in use by the Cincinnati, Hamilton & Dayton Railroad, the Louisville & Nashville Railroad, the Lake Erie & Western Railroad, and the Detroit, Toledo & Milwaukee Branch of the Lake Shore & Michigan Southern Railroad. Undisputed testimony proves that parts of the smallest engines used on the defendant's road projected farther than did these steps. It was shown that the Wabash Railroad--the only road upon which defendant had had prior experience--and the main line of the Lake Shore & Michigan Southern Railroad had no cabooses with such steps. One witness, a Mr. Bray, who had been a master car builder, testified that he considered the construction improper; but his only objections to it are that the step might be knocked off by...