82 Mich. 369 | Mich. | 1890
Plaintiff’s decedent was a switchman in the employ of the Wabash, St. Louis & Pacific Kailway Company. The engine upon which he was employed ran into a truck owned by the defendant, and driven by his teamster, and resulted in the death of decedent. Plaintiff brings suit against defendant, claiming that the accident was the result of the negligence of his employé, and that such negligence was to be imputed to the defendant.
A diagram showing the situation of the tracks and streets near which the accident occurred will be found on page 371. Woodbridge street is north of the freight-depot and Union Depot elevator and the tracks of the railroad company. The whole space represented upon the diagram is a part of the yard of the company. The space marked “roadway,” leading from the Union Depot elevator to Woodbridge street, is a private way belonging to the company, but was constructed for the accommodation and convenience of those patrons of the company who had business at the elevator. All such, therefore, had the right to use it the same as if it were a public highway. Teams Avhich had been to the elevator or freight-depot had their choice of going east to Twelfth street, thence to Woodbridge street, or north, by this roadway.
There are two tracks on each side of the main track, near the place of the accident. The regular switch-engine was laid off for repairs, and a regular road-engine was being used for switching. The engine was going west on the main track to attend to some switching some distance beyond the roadway. The switch crew consisted of foreman, engineer, fireman, and the deceased as switchman. Tracks Nos. 4= and 5 were filled with freight-cars from a
The litigation resulting from this accident is anomalous. Defendant's teamster sued the railroad company for injuries; the company was found negligent, and judgment recovered, which was paid. The railroad company paid defendant for the loss of his team. Plaintiff sued the railroad company in the Circuit Court of the United States for the Eastern District of Michigan, claiming that the death of deceased resulted from the negligence of the company in not ringing the bell, blowing the whistle, stationing a flagman at the crossing, and in obstructing-the view of the track. Judge Brown, before whom the case was tried, directed a verdict for the defendant, upon the ground that the deceased was guilty of contributory negligence. Plaintiff then brought this suit.
Several questions are raised by thp record, but the plaintiff’s right to recover is barred by his decedent's con
We quote with approval the language of the Court in Railroad Co. v. Jones, as applicable to this case:
“This [contributory negligence] is shown with as near an approach to a demonstration as anything short of mathematics will permit.”
There was no fact in this case for the determination of the jury. The question was therefore one purely of law. It was therefore the clear duty of the court to instruct the jury to find a verdict for the defendant. It was as clearly its duty as it would he to determine the legal effect of a contract the terms of which are undisputed-
judgment is reversed, and case remanded for a new trial, with costs of both courts.