216 Mich. 664 | Mich. | 1921
The plaintiff owns and operates a chicory factory just outside the corporate limits of Bay City. The defendant’s belt line has a side track 850 feet in length leading to this factory. At the end of the track, a bumping post was placed to prevent cars from
Defendant’s counsel moved for a directed verdict. This was denied. The trial court held that the defendant was released from liability due to ordinary negligence by reason of an agreement of release therefrom entered into when the side track was put in. He submitted the question of defendant’s liability on account of the gross negligence of its employees in charge of the train to the jury, who found for the plaintiff in the amount stated.
The only error presented for our consideration is thus stated by defendant’s counsel:
“The court erred in not directing a verdict on the ground that there was no testimony or evidence that would sustain a finding of gross, wanton or wilful negligence, as alleged in the declaration.”
The court instructed the jury:
“Now, gross negligence means an intentional failure*666 to perform a manifest duty in reckless disregard of consequences as affecting the life or property of another. It also implies a thoughtless disregard of consequences without exerting any effort to avoid them.”
Counsel for the defendant say:
“We are not here raising the question or claiming that the side track agreement protects the defendants in cases of gross negligence.”
Their contention is that the negligence at most—
“was a failure to correctly judge the proper distance or the amount of room for the accommodation of cars on that track.”
Charles Baumeister, the rear brakeman, testified as follows :
“I was the rear brakeman, and my place was at the rear end of the train. * * * When we were backing into that siding I was at the top end of the yard up around seven or eight cars from the engine. There was nobody at the back end so far as I know. It was my place at the back end. The first thing I knew the engine started to snort, and we swung them down. I did not feel the train hit anything. After the train stopped I went back to see what the trouble was, and the battleship gondola was sticking inside of the house.”
Defendant’s counsel approve the instruction given defining “gross negligence.” Let us then consider the conduct of the rear brakeman in the light of this definition. Clearly, it was his duty, when the train entered the siding and approached the cars standing thereon, to have placed himself in a position where he could signal the engineer, or if on a bend the front brakeman, when the end of the train was approaching the end of the side track. He neglected his duty, not in misjudging the amount of room required for the accommodation of the cars being pushed into the siding, but in failing to place himself in a position where
The judgment is affirmed.