142 Mich. 459 | Mich. | 1905
(after stating the facts). In the briefs and oral arguments it was asserted by plaintiff’s counsel— and denied by defendant’s counsel — that there was not a pail of sand or a shovel provided on plaintiff’s car with which he could throw sand upon the track in case of emergency. Under this record the question is wholly immaterial. ■ No such ground of negligence is alleged in the declaration. The duty of the defendant alleged in the declaration was to ‘ ‘ equip and supply its said car with
The inquiry made by the plaintiff of the superintendent in the morning, before he commenced his day’s work, whether the cars should not be equipped with sand boxes and sand, was not made with reference to the slippery condition of the track which developed at noon. It was made with a view to equipping the cars with this automatic arrangement for use on all occasions when necessary. There was evidence that the president of the street railway employés’ union .had requested Mr. Merrill, the manager of the road, to place sand boxes on the cars, and that Mr. Merrill said he did not think it was necessary; also that the superintendent of the road in Ann Arbor told plaintiff, on the morning in question, that he did not think it was necessary. There is evidence of but one other runaway, on account of the slippery condition of the track, on this road during the several years of its existence, and that happened several years before the plaintiff’s accident. Evidence of this came from one Mullison, a motorman, who had been in the employ of the company for six years as motorman and conductor. Whether this runaway of Mullison’s commenced upon Detroit street, or whether it commenced on the steep grade from Detroit street to the depot, the record fails to show. From the fact that the result was not very serious, it might be inferred that Mullison lost control of his car as it commenced to go down the steep grade by the depot. De
Counsel for plaintiff, however, insist that they were prevented by the ruling of the court from showing other similar occurrences. Counsel’s basis for this claim is found in the exclusion of thp following question, propounded to the depot master, one of plaintiff’s witnesses:
“ How many cars do you know of having run away and run down that hill before this,- since you have been there — getting away and running down that hill, and Tunning into that depot or something there ? ”
This was objected to as incompetent, and the objection sustained. No attempt was made to show, by Mr. Mullison or any other employe of the road, similar runaways. Mr. Mullison’s testimony was admitted without objection. Its competency is too clear to admit of doubt, if that runaway occurred on Detroit street. There was no attempt to show that the depot master knew anything about the cause or circumstance of any other runaways, if there were any, nor whether they occurred in running down the very steep grade from Detroit street to the depot, or whether they started above on the street. This question furnishes no basis for an argument that plaintiff was prevented from showing other similar runaways for similar causes upon the same portion of the road.
Having disposed of these preliminary questions, we now •come to the first main question, viz.: Was there evidence that the defendant was negligent in failing to provide its cars with sand boxes and sand, for use so that they could
“ State whether or not, at the time of this accident, good railroading demands that these cars should have sand boxes and sand supplied upon the cars ?
“A. I believe they would have been safer.
“ Q. Would it have been good railroading to have done it?
“A. I believe it would have been good railroading to have done it; yes.”
On cross-examination he gave his definition of the meaning of good railroading as follows:
“ What I mean by good railroading is that everything should be done possible in equipping a car to insure safety.”
2. I think it was error for the circuit judge to say to the jury that—
“He [plaintiff] was only a motorman without other training or experience or knowledge than what was merely sufficient to start and run and to stop the car, and he possessed no mechanical or other scientific knowledge or training, but was an inexperienced young man recently from the country.”
I find nothing upon this record to indicate that plaintiff was not instructed in the usual manner and for the usual time considered necessary to enable motormen to run one of these cars alone. It is not a difficult thing to do. It was not necessary, neither was it expected, that he should understand all the mechanism of the car. No scientific knowledge was required. When he had been instructed and had learned how to control such mechanism by the use of the lever and the brakes he had acquired all that is essential. If anything happened to disable his car, the rules required him to have the next car. take it back to the barn for repairs. He is not, as is a railway engineer,, re
“I asked him the question whether he did not think there would be; or ought to be, sand and sand boxes upon those cars, and he said, ‘ No;’ that it was not the car, it was the man, who was to blame. He said he could take a car down there at any time, and go down there safely, and so could any other man who would go down there carefully.”
Every motorman, so far as appears from this record, had taken his car down Detroit street in safety. If this
Judgment must be reversed, and new trial ordered.
I agree with Justice Grant that the case should be reversed, but think there was evidence tending to show the defendant Was negligent in not equipping its cars with automatic sand boxes. '