48 Mich. 622 | Mich. | 1882
Action for negligently causing the death of the plaintiff’s intestate.
The declaration avers that on the second day of January,. 1878, the decedent was in the employ of defendant as a switchman, upon and about the switch locomotive number 241 owned and operated by defendant; that it was his duty as such switchman at the time aforesaid by the nature and terms of his employment to attend and be with said switch-engine in the handling of cars of ordinary freight and to perform the ordinary duties of an ordinary switchman in the defendant’s service ; that it was not contemplated in his-employment that nitro-glycerine was an ordinary or proper freight, such as would be loaded into the cars of defendant to be handled by said switch-engine while he was employed)
The negligence here charged against the defendant is seen to consist in sending him into the vicinity of a dangerous explosive without informing him of the danger and giving, proper caution.
A second count sets out facts to show that the nitro-glycerine was improperly put up in ordinary tin cans wholly unprotected, and for that reason was specially liable to explosion in handling, and exposed those coming near it to-more than the ordinary dangers. The allegation of negligence is substantially the same in the two counts.
The facts brought out on the trial were the following :• Foley, at the time of the accident, was twenty-one years of' age, and had been in the employ of defendant for two years. He had lived in the neighborhood for many years. It was a mining district, and nitro-glycerine was constantly made use of for mining purposes; the Lake Shore Nitro-G-lycerine Company supplying 60,000 to 70,000 pounds a year. On January 1, 1878, that company .contracted with the Marquette, Houghton & Ontonagon Railroad Company to trans
Tho circuit judge instructed the jury that the facts put in evidence had no tendency to show negligence in the defendant; and they accordingly returned a verdict in defendant’s favor.
If the nitro-glycerine was improperly put up in packages as the plaintiff claims, and for that reason its handling was extra-hazardous, there was no evidence that knowledge of the fact was brought home to defendant. The officers and agents of defendant had a right to assume that the Nitro-Grlycorine Company was in tho exercise of due care, and that its merchandise was in proper and safe packages. If it
The question then seems to be this: Whether defendant, in complying with a proper request from another railroad company to run for it a short distance one of its cars, to be loaded with an article which was safe when properly handled, but exceedingly dangerous when carelessly handled, was bound to assume that negligence on the part of those handling it would occui', and bound to take measures for the protection of its servants on that assumption. And if this question shall be answered in the affirm.ative, the further question will be presented : What measures of protection could the defendant take short of absolute .refusal to move the car at all? The switchman knew what was to be loaded and had a general knowledge of its ■qualities; but more particular and specific information to him on that subject would have been entirely without ■value. He was not to handle the nitro-glycerine, and he .could exercise no control over the action of those who were. ■Caution from him on the subject would not be likely to receive attention from the men whose business it was, and who handled it constantly. The only caution to decedent which could have been of the least service would be the •caution to keep away altogether. If he was entitled to this, it necessarily follows that defendant should have refused .altogether to move the car over its track. But it was not -claimed on the argument that this could have been properly ¡and even lawfully done. Public Acts 1873, p. 506, § 10.
It was proved on the part of the plaintiff that when the ■order for switching the car was given, decadent was notified that the car must be kept out of the way of the passenger train which would be due after a time, and that if it was mot loaded in due season it must be side-tracked. This, it is said, may have tended to cause haste and consequent carelessness in the loading. There is not the slightest evidence that it did so, and the time before the passenger train woulij .be due was shown to be ample. The order was probably ¡needless, but it was an order of caution, not of negligence :
Further discussion of this case is needless. There was-not the slightest evidence tending to fix upon the defendant, its officers or agents, any neglect of duty or any want of due care.
The judgment must be affirmed with costs.