90 Mich. 567 | Mich. | 1892
Plaintiff was switching in the yard of defendant at East Saginaw, Mich., June 5, 1890, and received injuries while attempting to uncouple cars. He brings this action for damages, alleging as negligence in the defendant the leaving of a frog unblocked, in which he caught his foot, thereby causing his injury. The defendant introduced no testimony, and plaintiff had verdict and judgment in the circuit court for Bay county.
The plaintiff, according to his own testimony, was in charge of a pony engine, doing switching in the yard of the defendant, and had some men with him, assisting, who were under his control and orders, as was also the engineer. His business was making up and taking to pieces trains as they came in on the several divisions. On the evening of the injury he was taking to pieces two trains, “ to get the warehouse cars, to take them down so that they could unload them, and load the freight into other cars, to send out to their destination, whichever way they would run.” He was hurt in the following manner:
“I went in to pull a pin. After the train stopped, the slack had run back, as there was a little down grade towards the river, and the slack was taken up, so that I could not pull the pin. I stepped out and swung the engineer back, — to back up, — and as the slack came back I stepped in to pull the pin, having hold of the hand-ladder; and I only took a couple of steps in trying to get the pin, as it was fast, as I was caught in a frog, and, having hold of the hand-ladder, it pulled my shoe off, and the jerk released my shoe, released my hold on the ladder on the car, and I fell in some way upon the rail, so that it took my clothes off of me and injured my leg and hip.”
There are many assignments of error not argued in the brief of defendant's counsel, with the statement in such brief, however, that they are not waived because not so argued. The counsel for plaintiff, in their brief, pass such assignments with the remark that they treat them as waived, as they consider that they are entitled, under the rules, to know by appellant's original brief what the position of such appellant is 'on each assignment upon which it relies for a reversal of the cause. None of these assignments were referred to upon the oral argument. We shall not, therefore, consider them. We are not disposed to go over some 35 assignments to ascertain whether the error alleged in each is well assigned or not, when the counsel for the appellant does not consider them of sufficient importance to point out to us their merit, if they have any. And under the rules we think the position of the appellee's counsel is correct, that, if there is no argument in the appellant's brief in favor of the correctness of an assignment, counsel for appellee are not called upon to argue such assignment in their brief; and, although it may be stated that such assignment is not waived, if the same is not referred to upon the oral argument, where the counsel for appellee may have opportunity to meet such argument as might be made in its favor, this Court will treat it as waived.
The first objection to the judgment is that the court below should have instructed the jury to bring in a verdict for defendant. This involves the question of the-negligence of the defendant, as well as the contributory negligence of the plaintiff.
First. As to the negligence of the defendant. , This was properly submitted to the jury. The statute (Act No. 174, Laws of 1883), expressly provides, under
It is undisputed that this frog was open when the plaintiff was hurt; and it is also quite apparent that, if it had been filled or blocked, he would not have been
Second. It is insisted that, as the plaintiff himself knew that there were unblocked frogs in the yard, although he did not know of this particular one where he was hurt, he was negligent, as a matter of law, in going between the cars while they were in motion to pull this pin. It is argued very strenuously and quite ingeniously that the courts are wrong in ever submitting to a jury the question of negligence; that the best definition of negligence ever given was that of the late Mr. Justice Campbell, in Mich. Cent. R. R. Co. v. Coleman, 28 Mich. 449, to wit: “ Negligence is neither more nor less than a failure of
Cooley, C. J., said in Detroit & M. R. R. Co. v. Van Steinburg, 17 Mich, at page 118, that—
“As a general rule, it cannot be doubted that the question of negligence is a question of fact, 'and not of law.”
See, also, cases there cited. It has also been said in several of the cases above cited that, if the trial judge has any doubt as to this matter of negligence, it is his duty to submit the question to the jury. And if the failure to use the care and caution which would have been exercised by an ordinarily careful and prudent man under the same circumstances enters into the question of negligence, then I am satisfied that whether or not there has been such a failure can best be determined by a jury.
The argument of defendant’s counsel that the jury were not competent, because unskilled, to determine whether plaintiff’s act was negligent, applies to courts as well as to juries. The counsel argues that the uncoupling of cars and switching them is a technical employment, requiring the skill and experience of practice, and that—
“ A brakeman or switchman of experience would justly smile at suggestions from 'the average juryman as to how he should perform his duties.”
Are judges supposed to know anything more about the proper manner of performing a switchman’s or brakeman’s duties than jurors? The answer is obvious. A jury of 12 men, drawn from the body of the people, and from all the avocations of life, would be more likely to have among its members men familiar with switching or braking upon railroads than would the bench, composed of men whose whole lives have generally been devoted to
It is contended that, under the rules of the defendant, the plaintiff was not authorized to enter between the moving cars to pull this pin; that he could just as well have done it with the cars standing still; and, as he had control of the engine, — the engineer being under his orders, — he was plainly negligent in not doing so. But the testimony shows that there was no rule of the defendant forbidding the uncoupling of cars while in motion, or even advising it not to be done. On the contrary, the evidence showed that it was the common custom to
A variance is claimed. between the declaration and the proofs, in that in the declaration it sets forth that the plaintiff was employed as a switchman, and was discharging his duties as such, while the proofs show that he was the conductor of a switch engine, or foreman of a switching crew. The variance is immaterial. His business was
We find no error in the charge of the court or in the proceedings upon the trial.
The judgment is affirmed, with costs.