Whalen v. Michigan Cent. R. Co.

• Decision Date: 01 October 1897
• Citation: 72 N.W. 323,114 Mich. 512
• Court: Michigan Supreme Court
• Parties: WHALEN v. MICHIGAN CENT. R. CO.

72 N.W. 323

114 Mich. 512

WHALEN v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

October 1, 1897

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

Action by William Whalen against the Michigan Central Railroad Company for personal injuries caused by defendant's negligence. There was a judgment in favor of plaintiff, and defendant brings error. Reversed.

Plaintiff a locomotive engineer, was injured by a collision of his train with the rear of a train which had stopped in front of him. The trains were going west, and the accident occurred at J. A semaphore was located east of J. station, and it notified plaintiff that the front train was standing at the station. If the air brakes had been set or worked, the accident would not have occurred. Plaintiff was an experienced engineer, familiar with defendant's rules and with the signals adopted for the protection of employ�s passengers, and defendant's property. He also knew the location of such semaphore, and the method and purpose of its use; that he was liable to find it turned against him; that he should approach it on the supposition that it would be so turned; that the air brakes under his control were sufficient to stop the train; and that, if these failed, the conductor's valve was usually sufficient for the purpose. Neither plaintiff nor any one else had made complaint. Held that plaintiff assumed the risk of the unexpected, unusual and unaccountable failure of the air brakes to work.

Plaintiff, a locomotive engineer in the employ of the defendant, left Detroit for Chicago on the morning of October 13, 1893, in charge of a special passenger train of 11 coaches. Thirty minutes in advance of this was another special train, of about the same number. The first train had stopped at the Jackson depot 20 minutes for breakfast. The second train crashed into the rear of the other, killing and injuring many passengers. Plaintiff, finding himself unable to stop his train by the application of the air brakes, jumped through the window of the cab, and was injured. This is an action of tort to recover damages for the injuries then received. The negligent acts charged are (1) the negligent and careless construction of the angle cock which constitutes a part of the air-brake system; (2) negligence in permitting it to get out of repair; (3) the negligent and careless construction of the conductor's valve, cords, and devices forming part of the system of air brakes; (4) negligence in permitting them to get out of repair; (5) the employment of incompetent conductor, baggageman, and brakemen; (6) negligence in locating and painting its semaphore placed to the east of the Jackson depot; (7) negligence in permitting its track to become obstructed with the engine and cars in front of said depot; (8) failure to provide and enforce reasonable and suitable rules for the governance of its servants in the use of said brakes; and (9) that it failed to give plaintiff proper and sufficient notice and warning that the track was so occupied and obstructed. Plaintiff recovered a verdict and judgment.

The instructions given to plaintiff were to run to Jackson regardless of all freight trains. The train made only one stop (at Ypsilanti for water) between Detroit and Jackson. It was supplied with air brakes, which are controlled by the engineer. Each car was also supplied with an apparatus known as the "conductor's valve," which is operated by the pulling of a cord which opens the valve and allows the air to escape, thus setting the brakes. If the engineer whistles for brakes, it is the duty of the conductor and other trainmen to pull this cord so as to set the brakes. If the air is shut off from the engine, it prevents the setting of the brakes back of the shut-off. By pulling the conductor's cord the brakes can be set. Rule 77 of the defendant company requires that each engineer must test the air brake at least one mile before reaching the regular stops, and, in case the machinery does not hold, must at once signal for brakes. Plaintiff testified that he made this test at Wayne, Ypsilanti, Ann Arbor, Dexter, and Jackson Junction, which is about a mile and a half east of Jackson, and that these tests were all satisfactory. After passing Jackson Junction he made another, which was not satisfactory. He at once whistled for brakes. About the same time his fireman discovered that the semaphore was against them, which notified them that the track ahead was occupied, and that they must stop. This semaphore was operated by electricity from Jackson station; was a thin iron plate, about 2 feet long and 10 inches wide, set upon a pole about 30 feet high, with a round hole in each end of the plate. The conductor heard the whistle for brakes, and immediately pulled the automatic cord in one of the cars, but said it had no effect on the train. He then went to the platform to look ahead. He testified that he was then about 15 car lengths from the semaphore. The engineer again whistled for brakes. The conductor then went into another car and pulled the cord, but testified that he got no effect. Meanwhile the engineer reversed his engine and let sand upon the rails, but did not succeed in stopping the train. The semaphore was located 925 feet east of the east end of the depot, and was 470 feet east of the rear of the advance train.

From the semaphore to Elm avenue is 3,512 feet. It was in the vicinity of this avenue that the plaintiff discovered that for some reason the air brakes did not work, that the semaphore was turned against him, and whistled for brakes.

The following rules were adopted for the guidance of engineers: "Rule 10. All trains approaching stations where semaphores are in use must be under full control, so as to be able to stop before reaching the semaphore if the arm should be extended, or a red light shown. Rule 11. When the semaphore arm is extended by day, or red light shown at night, all trains will come to a full stop, and not proceed until arm has been lowered or white light shown, except under protection of flag, as follows: In case any train shall have been stopped by semaphore, such train may and should proceed beyond the semaphore under protection of flag. In such cases a flagman must be sent in advance of such train in a sufficient distance to protect it against any train or obstruction upon main track, or any train or engine working upon main track under protection of semaphore. The conductors of all trains stopped by semaphore must at once take measures to protect the rear of their trains as per rule 46." "Rule 73. Engineers of trains moved by special order, and of all special, extra, and working trains, will approach stations with extreme caution, upon the supposition that another train will be met, or that the main track will be occupied, and will carefully approach stations at which they ought to meet or pass trains, and, on approaching those at which the train is to stop, shut off steam early enough so that by the application of brakes to train the speed will be reduced, and train under full control until brought to a full stop. No train will run over any portion of the road at a greater rate of speed than the order calls for." "Rules 133. Electric signals have been erected east and west of Jackson Junction, east and west of Jackson passenger station on main line, west of Jackson Junction on air line, west and north of Jackson and Saginaw and Grand Rapids branches at Cooper, Mechanic, and north of Ganson street. When the main tracks are obstructed between the signals, a red board will be shown by day, and a red light by night. When the tracks are clear, nothing will be shown by day, but a white light will be shown by night. All trains will come to a full stop when a red board or red light is displayed, and not proceed until the signal has been changed." "Rule 135. All trains approaching West Detroit, Junction Yard, South Yard, Ypsilanti, Dexter, Jackson Junction, Jackson, Niles, New Buffalo, Michigan Central Yard, Michigan City, Lake, and Kensington must be under full control, so as to be able to stop in case the main track should from any cause be occupied. A sharp lookout must be kept for signals in approaching above points." A part of rule 134 reads as follows: "All passenger trains will use four minutes between east switch at Jackson Junction and Jackson."

The court eliminated from the consideration of the jury most of the grounds of negligence alleged in the declaration, by instructing them that there was no evidence to support them. The theory upon which the case was left to the jury is shown in the following excerpt from the charge: "For the purpose of this case it may be conceded that the failure of the air brakes to perform their work was the cause of this accident, and that the cause of such failure rests in doubt and obscurity; but nevertheless there is presented to you by the evidence this more important question, whether or not the contingency and possibility of such failure of the air brakes to work did not, in the exercise of ordinary care and prudence, demand of the railroad company the use and exercise of other and further precautions than were taken in this case, in view of the fact that such an emergency might at any moment arise, and in this case did actually exist. If the jury shall find from the evidence in this case that notwithstanding the displacement of the angle cock upon the plaintiff's engine, if the defendant had placed its semaphore in such a position as to give the plaintiff reasonable notice of the danger, or if the defendant had informed him at Grass Lake that the train would be on the main track when he arrived at Jackson, he would have been able to have prevented the accident, then the defendant was negligent. It was the duty of...