133 Mich. 578 | Mich. | 1903
Lead Opinion
The plaintiff was a brakeman on the defendant’s road on the 1st of February, 1900. He left the service of defendant temporarily, and was away until the 9th. He returned and resumed work on Febru
On the morning of February 26th, the plaintiff left Filer City, with his train and crew, and returned between 3 and 4 in the afternoon. He was acting as rear brakeman. The train consisted of the engine, two box cars, and about thirty flat cars loaded with logs, and, beyond this, a merchandise car and a passenger coach. As the train neared the south switch at Filer City, plaintiff uncoupled the two-rear cars, and they were left about 150 feet south of the south switch. ■ The other cars were pulled ahead, and made a flyifig switch for the logs; and the engine, with two Manistee & Grand Rapids box cars, loaded with wood, backed up towards the dock switch, which is about 600 feet north of the south switch.
After the plaintiff had uncoupled the two rear cars, he stepped off the merchandise car, and- walked down the east side of the track, close to the rail, towards the dock switch. The bed of the track was covered with snow. He paid no particular attention to the roadbed between the rails. He went north on the east side for a distance of about 200 feet beyond the south switch. He then stepped across to the west side, because the bank was narrower on the east side. In the meantime the logs had been switched onto the dock tracks, and the engine, with the two cars loaded with wood, had backed up near the dock switch. The engine then started to back the two cars loaded with wood past the south switch, in order to-couple onto the two cars left standing, and push them back south of the crossing, and clear the main track for Manistee. The plaintiff met the engine and the two box cars, backing slowly, a little south of the dock switch.
Just after they passed the south switch, plaintiff observed that the coupler on the car on which he was riding was closed, and needed adjustment. He had now passed onto the reverse curve, so that he could no longer see or signal the fireman. Plaintiff then stepped down from the ladder, and in front of the moving car, for the purpose of crossing over to the other side, where he could signal the engineer. The roadbed was free from obstruction, and apparently all right. In passing, he attempted to adjust the coupler, by opening it, so that it would couple onto the standing car left down by the crossing. He took hold of the coupling pin with his left hand, and the knuckle of the coupler with his right, and at the same time traveled towards the south, in front of the moving car; the track being apparently all right. He stepped into this ditch, fell down, and the car passed over and crushed his leg, just above the ankle. The circuit judge directed a verdict for the defendant, and the plaintiff brings error.
The plaintiff offered to show that it was the custom of employés of defendant company, in coupling cars, to go in front of moving cars. The court excluded this testimony. The testimony was admissible, under our former holdings. Hunn v. Railroad Co., 78 Mich. 526 (44 N. W. 502, 7 L. R. A. 500); Eastman v. Railway Co., 101 Mich. 597 (60 N. W. 309); Fluhrer v. Railway Co., 121 Mich. 212 (80 N. W 23); Jones v. Railroad Co., 127 Mich. 198 (86 N. W. 838).
We think it was also competent for the plaintiff to testify for what purpose he got down and started to pass through in front of the moving car. The declaration
That the testimony of the condition of this track was such as tended to show negligence on the part of the company is not open to doubt. Ragon v. Railway Co., 91 Mich. 379 (51 N. W. 1004); Palmer v. Railroad Co., 87 Mich. 281 (49 N. W. 613); Sweet v. Railroad Co., 87 Mich. 559 (49 N. W. 882); Anderson v. Railroad Co., 107 Mich. 591 (65 N. W. 585); Hollenbeck v. Railway Co., 141 Mo. 97 (34 S. W. 494); Chicago, etc., R. Co. v. Maroney, 170 Ill. 520 (48 N. E. 953, 62 Am. St. Rep. 396); Hannah v. Railroad Co., 154 Mass. 529 (28 N. E. 682).
The chief contention of defendant is that the plaintiff was guilty of contributory negligence, as matter of law, and the case of Secord v. Railroad Co., 107 Mich. 540 (65 N. W. 550), is cited to sustain this contention. That case was determined upon the doctrine of assumed risk. The injury to the plaintiff resulted from his hand being pinched in coupling two cars, it being claimed that the couplings were defective. But it was said that the condition was as apparent to the plaintiff as to the defendant, and that he must be held to have assumed the risk. It was added that the condition of the drawbar was discovered when three car lengths from the place of coupling, and that plaintiff “testified that he could have raised the drawbar without taking hold of the link, thus avoiding any danger of his hand being pinched, and that he would-not keep hold of the bar so long again in making such a coupling.” We think the case is not controlling of the present. In the present case the testimony tended to show that the plaintiff was following a custom in passing in front of moving cars in the performance of his duty. This is not, as matter of law, contributory negligence. See Ashman v. Railroad Co., 90 Mich. 576 (51 N. W. 645); Eastman v. Railway Co. and Jones v. Railroad
The judgment will be reversed, and a new trial ordered.
I concur in the reversal of this case, upon the ground that plaintiff’s negligence was not conclusively proved. In the absence of a rule, or, if there be a rule prohibiting employés from entering between moving cars to couple them or adjust couplers, if there be evidence showing its waiver, it is doubtful if the fact of such entry can be said to be negligence per se, under the circumstances of this case, where, although the estimated speed of the train was 4 miles an hour, or more, the plaintiff was able, after his fall directly in front of the. car, to scramble upon his hands and feet, for a distance of 12 or 14 feet, and then get all of his person from the track but one foot. There is evidence indicating that it was good railroading to enter and adjust the coupler in the way attempted, and that it is necessary for both couplers to be open, when the cars are to be coupled on a sharp curve, and that opening them could not be done from the side of the car. While we know that there is always some risk in entering between moving cars, and can imagine cases where we will take judicial notice that it is so, we cannot make such a rule applicable to all cases of entering between moving cars to couple them or adjust couplers.
No rule forbidding the practice was proven in this case. Therefore proof of the custom upon this road was un
Dissenting Opinion
(dissenting). I think the court properly directed a verdict for the defendant. • The act of walking or running in front of a railroad train for the purpose of arranging or making a coupling has always been regarded as exceedingly dangerous. It requires no argument to show that it is so. In doing it, the brakeman is required to walk sidewise, with his eyes fixed upon the coupling apparatus, and not upon the track where he is walking or running. Railroad companies for many years experi
The train was under the exclusive control of the plaintiff. If necessary to go in front of the car to arrange the coupling pin, he could have done it before he started the train. He could have stopped it, if necessary to do it. Instead of arranging the coupling pin in ways which were open to him and perfectly safe, he deliberately chose one full of danger. He entered upon the track at a place where neither the engineer nor the fireman could see him, without any notification to them of his intended conduct, upon a track covered with snow, when he was 164 feet from the car to which he was to make the coupling, and the train running, as he testified, at from 4 to 5 miles an hour. He describes his action as follows:
“ I placed my left hand on the pin, and my right hand*586 on the knuckle, in the act of opening it. I immediately started then to open the knuckle on this moving car. I did not attempt to get over on the other side of the track first, and give a signal to slacken up, but immediately started to open the coupler on this moving car.”
If this is acting with due care and with proper regard not only for one’s own safety, but for the benefit of his employer, I can hardly comprehend what negligence would be. There was no rule of the company requiring such risks on the part of its brakemen, and, if there had been, as we said in Loranger v. Railway Co., 104 Mich. 80, 86 (62 N. W. 137), “such a requirement would be at once condemned as cruel and inhuman.” No one is justified in taking such risks, unless absolute necessity demands it.
I think the court correctly excluded all evidence of custom on the part of the brakemen to go in front of moving trains to make couplings, on the ground that this was not a case for the application of the rule in regard to custom. Employés cannot create a custom, however universal, against their employer, by continually doing things in a reckless and negligent manner, when the employer has provided every means possible to do them with safety. I do not think such a doctrine finds approval in the decisions. There are cases holding that it is not negligence per se to go in front of a moving train to effect a coupling. • But these are cases where there is also evidence tending to show that the work on the railroad could not be satisfactorily done otherwise. They do not apply to cases like the present one, where no possible excuse exists for doing the work in the manner this was done. We said in Loranger v. Railway Co., supra:
“It is abhorrent to reason and common sense to say that it is good and safe railroading and careful conduct for a brakeman to step in front of a train moving as fast as a fast walk, and perform a service which requires him to step sideways to keep out of the way, knowing that death is almost sure to follow, should he miss his footing. ”
I think the judgment should be affirmed.