133 Mich. 371 | Mich. | 1903
This is an action for negligent injury. The plaintiff received the injuries of which he complains while attempting to unload from a car on the defendant’s side track at Kingston two head of cattle and one calf, which, with household goods of plaintiff, constituted the shipment in said car, which had on the day in question been shipped from Leonard to Kingston. While plaintiff was so engaged in unloading the car, the defendant’s train backed up against it, was coupled to it, moved forward, and caused the injuries which- plaintiff sustained. Plaintiff’s testimony tended to show that, in the position in which he was at the time the train was backed against the car which he was unloading, it was impossible to extricate himself until the forward movement of the- car threw him to the ground and caused the injuries complained of.
The circuit judge, at the conclusion of the plaintiff’s case, directed a verdict for the defendant. We are therefore to consider the case as made by the plaintiff’s testimony, placing the most favorable construction upon the
The circuit judge’s direction proceeded upon the view that, as the control of the train was with the conductor, there had been no delivery of this car; that no one having authority had said to plaintiff, in substance or effect, “ Here is the car; we deliver it to you.” The fault in this view is that it takes no account whatever of the previous arrangement with the station agent. It was not so much a question of who had control of the train while in operation. The fact appeared to be that the car had been located at the point previously agreed upon between the plaintiff and the station agent having control of the business at that point, and we think it was a question for the jury as to whether the plaintiff, in view of this previous talk, had the right to assume that this car was so placed with the purpose of delivering it to him. If it were, it was certainly a delivery.
But, even apart from this previous arrangement, we
In the brief of defendant’s counsel the claim is made-that the plaintiff was guilty of contributory negligence; it being contended that, standing on the east side of the car, where plaintiff was located, the car could be seen coming-from the north. But the plaintiff’s testimony shows that from the point where he was standing on the gang-plank, and close up to the car door, an approaching car could not be seen. We think the question of plaintiff’s contributory negligence was, at the most, a question for the jury.
Judgment will be reversed, and a new trial ordered.