114 Mich. 199 | Mich. | 1897
March 29,1895, at about half past 8 o’clock in the evening, Lyman H. Knapp, an experienced brakeman, who had been in the employ of the defendant for two weeks, received injuries while attempting to couple freight cars at a street crossing, from which he soon after-wards died. His administratrix brought this action to recover damages for his death, and obtained judgment. Defendant appeals.
One of the errors assigned is that the testimony failed to disclose any liability on the part of the defendant. It is said by counsel for the defendant that from the evidence no one could say what was the cause of the accident. It was the claim of the plaintiff that the foot of the deceased caught between the plank and the rail at the crossing, that the brake beam pushed him back, and that the wheels ran over one foot, and over the other leg between the ankle and the knee. It is the claim of the defendant that the proofs disclose that deceased stumbled against the ends of the four-inch planking at the crossing, was carried forward by the cars for two or three rods, and that at that point the wheels ran over him. Counsel says that at least this is the more probable solution of the way the injuries were received, and that; as it is purely conjecture how the injuries occurred, the circuit judge should have directed a verdict in favor of the defendant; citing Manning v. Railway Co., 105 Mich. 260; Searles
There was evidence on the part of the plaintiff tending to show that one of the planks between the rails at the southeast corner had split off near one end, the splinter being from two to four feet long, leaving a space sufficiently wide to let in the foot of a man, and that it had been in that condition some months. The record discloses that when the train was stopped, and Mr. Knapp discovered, he was taken out from under the car, and was questioned as to how the accident occurred. lie said “he got caught in the planking between the plank and the rail; the brake beam pushed him back.” This testimony was admitted without objection. Some of the witnesses discovered blood on the crossing about two feet from the north end of the plank. Blood was found about six inches from the rail, some on the east rail, and at different places further north; also on the crossing, close to the southeast corner, and on the ground, close to the south end of the plank. The space between the rails looked as though a body had been rolled or slid along in places for a distance of about two car lengths north of the crossing to a point where the injured man was found when the train was stopped. The shoes worn by Mr. Knapp were introduced in evidence. The left heel had been run
Some exceptions were taken to the charge of the court. It is not necessary to discuss them further than to say that an examination of the charge shows that they are not well taken. The charge was a full, explicit, and careful statement of the law applicable to the case.
The point is made that deceased did not exercise the caution an experienced and prudent brakeman should exercise in making a coupling on a dark night. That was a question for the jury; and there was testimony from Mr. Wilson, a brakeman, a witness for the defendant, who saw as much of the unfortunate occurrence as any one, as follows:
“I saw Mr. Knapp go in front of the car. I suppose he went in to change the link. That was a part of his duty as a brakeman.
“Q. For that reason you took it for granted he went in to perform his duty ?
“A. Yes, sir; went in to change the link.
“ Q. That was the proper thing to do?
"‘A. That is what I always do.”
The jury decided the question against the defendant, and there was abundance of evidence as to that feature of the case upon which to base their verdict. Staal v. Railroad Co., 57 Mich. 239; Gardner v. Railroad Co., 58 Mich. 592; Adams v. Iron Cliffs Co., 78 Mich. 277 (18 Am. St. Rep. 441); Ashman v. Railroad Co., 90 Mich. 576; Eastman v. Railway Co., 101 Mich. 602.
Counsel says that the court, having charged the jury, instructed them they must stay out until they had agreed to a verdict. If this had been'done by the court just as
“You may retire again. If you agree before the incoming of the court in the morning, you may seal up your verdict, notify the sheriff, and you will be discharged.
“Juror: If we don’t agree, we stay until we do agree?
“The Court: Certainly; the sheriff will not allow you to go.”
The court and the jurors undoubtedly understood that the jurors were simply to keep together until morning, unless they agreed before, and not that they were to be kept indefinitely' unless they agreed. We do. not think the record discloses any reversible error.
Judgment is affirmed.