Viets v. Toledo, A.A. & G.T. Ry. Co.

• Decision Date: 15 October 1884
• Parties: VEITS v. TOLEDO, A.A. & G.T. RY. CO.
• Court: Michigan Supreme Court

20 N.W. 818

55 Mich. 120

VEITS v. TOLEDO, A.A. & G.T. RY. CO.

Supreme Court of Michigan

October 15, 1884

Error to Monroe.

B.F Graves, for plaintiff.

Grosvenor & Landon, for defendant.

CHAMPLIN J.

The defendant is a corporation formed by a consolidation of the Toledo & Ann Arbor Railroad Company with the Toledo, Ann Arbor & Northwestern Railway Company. Herman G. Veits was killed while in the employ of the Toledo & Ann Arbor Railroad Company as a brakeman, previous to the consolidation. The claim made by the plaintiff, as presented to this court, is as follows: "That the plaintiff's intestate was a boy 18 1/2 years old, without experience in coupling cars entirely unacquainted with the danger attending such work large of his age, clumsy, and slow in his perceptive faculties; and that on or about the seventh of December, 1878, the Toledo & Ann Arbor Railway Company, (which has since been consolidated with another railway, making the defendant,) through its conductor, John Carland, hired the plaintiff's intestate, and put him onto one of its freight trains going north through Dundee towards Ann Arbor, and sent him to using the brakes and coupling cars on the freight train, the most hazardous work known to railway employes; that they did this without his parents' knowledge, and without instructing him how to perform his duties and to avoid dangers, or in any manner pointing out to him the danger attending the work he was sent to perform, and by reason of this neglect on the part of the company he was killed. It is claimed by the plaintiff that he went upon the train at Carland's request on the morning of the seventh of December, at Dundee crossing, without doing any coupling. The train run to Azalia, the first station north of Dundee, on defendant's road, where the conductor sent young Veits to make the rear coupling, while himself, the engineer, and the other brakeman proceeded to 'kick' back cars for young Veits to couple, and that, while doing this work, in some inexplicable manner he got between the cars and was crushed to death. This is the burden of the first count in the declaration, the second count having been abandoned. The third count charges that the plaintiff's intestate was injured, from which death resulted, by the negligence and incompetency of one Harris McDaniels, the engineer in charge of the engine at the time; and that the company was negligent in keeping him in their employ after it knew, or ought to have known, by the exercise of reasonable diligence, that he was careless and incompetent."

At the conclusion of the testimony the court charged the jury that the plaintiff had failed to prove such negligence as warranted them to render a verdict for the plaintiff, and directed a verdict for defendant; and the only question to be considered here is whether this instruction is correct. The bill of exceptions embraces the whole testimony...