108 Mich. 7 | Mich. | 1895
Lead Opinion
The defendant appealed from a judgment rendered in an action brought to recover damages sustained in an attempt to couple an engine to a train of cars. The accident happened on a branch road running from Gladwin to Pinconning, where it joins the defendant’s main line. On this day the engineer, whose duty it was to inspect the engine, discovered that the pushbar upon the front of the engine was cracked. This discovery was made just before leaving for Gladwin, and he did not report it, thinking it would answer for the trip, which would otherwise be delayed. The train consisted of several freight cars, a baggage car, and some coaches. When within two miles of Gladwin, the water became low in the tank, and the engine was uncoupled, and taken to Glad-win for water. The plaintiff rode in the cab. At Gladwin the engine was turned around for convenience in taking water; and, to avoid turning twice more, the engineer determined to couple to the train with the pushbar, and back his engine for the two miles. On the return from Gladwin to the train, the plaintiff sat upon the pilot, and, when within about two car lengths of the train, he stepped down upon the crossbar of the pilot, and raised the push-bar, which entered the drawhead of the car properly, but was broken by the violence of the shock, as was the brake-beam of the car and a drawbar of the third car beyond. At the time of attempting to make the coupling, the plaintiff stood upon the crossbar of the pilot. Several witnesses stated that the only prudent or usual way to make a coupling with the locomotive pushbar is to stand upon the pilot, and raise and guide the bar, as the car is approached. The engine is shown to have struck the train while the former was going at a rate of five or six miles an hour, in consequence of a failure of the brake and reverse lever to work, both of which the engineer said that he used, but without diminishing speed,
It was the duty of the defendant to furnish machinery in a reasonably sound and safe condition, and to use ordinary care in keeping the same in repair. This is an absolute duty, which the master cannot relieve himself from by imposing it upon another. There is no claim that defendant did not furnish a reasonably safe pushbar. If there is liability, it must be based upon a failure to use proper care in discovering and remedying the defect. If there was negligence in this, it was either a failure to prudently inspect, or by reason of the use of the defective pushbar after inspection. The record shows that there was no provision for inspection other than inspection by the engineer operating the train. He was expected to inspect his engine at all practicable times, and to report defects. This was no more than common prudence dictates should be required of all operatives of railway trains, and it is to be considered as a part of their duties in and about the operation of their trains; and this is as true when the railroad company makes no other provision for inspection as when it has another regular inspector. Such inspection, in the ordinary operation of the road, is the act of a fellow-servant, as between the engineer and brakeman, and, as between them, does not constitute the engineer a representative of the master. To say that an engineer who should err in attempting to make the next station, after his engine became broken, acted as the representative of his master, thus holding the latter liable to the fireman, who was injured, would be carrying the rule too far. An unreported injury of the brakes known to the brakeman would be another illustration. The duty that the master owes tó his patrons requires vigilance and care upon the part of the crew, and the master should be permitted to
But if the company makes no other provision for inspection, and chooses to rely upon the reports of its men, deferring repairs until breaks occur, or until the operators, in due course of business, report defects, we must either say that it has neglected the duty of inspection altogether, or that it has imposed one of its duties upon its operatives, and that it does not fall within the limits of fellow service, or that it may avoid the duty which the law imposes, by invoking the rule of fellow-servant. So long as operatives do report, and the master repairs promptly, the jury may properly say that there is no negligence on the part of the master; but, if defects are not seasonably repaired, the master neglects a duty, and we should not split hairs to determine whether it was his personal carelessness, or that of the agent whom he appoints to apprise him of his impending duty to repair, although such agent be a fellow operative of one who is injured by reason of
Can we say, as matter of law, that the master was neg-. ligent, or that he was not negligent, under the testimony contained in this record? The engineer discovered the defect in the pushbar before he left Pinconning, and while there was time and opportunity to give up the trip. It may be said that the defect was not such as to require the defendant to withdraw or delay its train to the inconvenience of its patrons and derangement of its business; that the pushbar need not have been used, or could have been used with care, for one trip, if, indeed, it was not reasonably safe for ordinary use, although slightly checked, —all of which may be true, and such suggestions might be proper for the consideration of the jury upon the question of the negligence in using the engine after this discovery. The exigencies of business may require the temporary use of defective cars and engines, and in this case it is plain that it could have been safely used if no attempt had been made to couple the head of the engine to the cars. Such emergencies call for increased care upon the part of those operating the machinery. Where the person injured is aware of the defect, he takes his chances if he uses the machine. Ft. Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133; Smith v. Car Works, 60 Mich. 501; Ragon v. Railway Co., 97 Mich. 265.
It may be that this pushbar, though checked, was sufficiently strong for any proper or any ordinary use, or, if not, that careful use, such as one aware of the defect might be expected to make of it, would not be hazardous, and, therefore, that the master would have been justified in allowing it to be used for the trip had it been reported.
The court instructed the jury that if they should find that the injury did not result from the defective pushbar, but was due to the speed and force of the engine, the plaintiff could not recover. This was as favorable instruction as the defendant was entitled to upon this subject, the rule being that, while an intervening cause precludes
It remains to discuss the question of contributory negligence. It is said by counsel for the defendant that, by riding two miles upon the pilot, the plaintiff was guilty of contributory negligence, and the case of Clover v. Scotten, 82 Mich. 369, is cited in support of the proposition. It is not clear that the ride upon the pilot did in itself contribute to the injury, but that it was his getting down upon the crossbar, and attempting to make the coupling. The witnesses agree that, had he been on the ground, it would not have been prudent for him to attempt to make the coupling without taking the position upon the crossbar that he did take. The only way that the ride upon the pilot can be connected with the accident is to say that, had he been upon the ground, he would not have attempted to make the coupling, while he could not safely do anything else, inasmuch as he was upon the pilot. The difficulty with this theory is twofold: First, we cannot determine that his safety required him to attempt a dangerous coupling as an only alternative to being injured, or that he could not have jumped off or otherwise avoided injury if he was in danger; and, second, we cannot say that he might not prudently have attempted this coupling by getting onto the crossbar from the ground. If so, his ride for two miles on the pilot was unimportant, for it would have made no difference whether he got into the place of danger (which was the crossbar of the pilot) from the ground, or a place of safety
The circuit court excluded testimony that the plaintiff might have gone back from Gladwin to the train in the cab, instead of upon the pilot. It already appeared that he did ride to Gladwin in the cab, making it an established proposition that he could have thus returned. The court, in ruling upon this, said that it was unimportant whether he could have been accommodated in the cab, for he thought he was rightfully where he was, i. e., upon the crossbar. An exception being asked, the court replied: “Certainly, or if they wish to contest the practice of standing on the pilot to make this connection, why, I do not wish to preclude you or them from showing it; but, as to riding in the engine in that place, I don’t think it is important. He had to get on there anyway.” We think no harm was done by this ruling or remark as qualified. It gave the jury to understand that the question of negligence in getting upon the crossbar was open, but that riding upon the pilot for two miles was not the proximate cause. If it were, it could not be held that a want of room in the cab justified plaintiff in taking a known place of danger.
We cannot say that the opinion of the engineer upon
We discover no error in the record, and the judgment will therefore be affirmed.
Concurrence Opinion
I concur in affirming the judgment. The duty which the master owes to provide a reasonably safe place to work and machinery in a reasonably safe condition is not discharged for all time by providing machinery or premises safe in the first instance. Van Dusen v. Letellier, 78 Mich. 492. This duty cannot be discharged by providing for an inspection by a fellow-servant, for wherever the duty of inspection, for the purpose of ascertaining whether there be a necessity to repair, or whether the machinery is in safe condition, exists, it is the master’s duty. The duty of diligence in maintaining the machinery in a reasonably safe condition necessarily involves the duty of the master to take such reasonable measures to inform himself from time to time of the condition of the machinery as common prudence dictates. In the present case no such provision was made, except through such inspection as was given by the engineer of the train; and I think it may be said that, while every accident to machinery when in use will not render the master liable for its continued employment by a fellow-servant while in such crippled condition, yet where, as in this case, the defect is discovered by the person intrusted by the master with the duty of supervision, and the discovery of the defect is made at such a time as
Dissenting Opinion
(dissenting). I have expressed my views of the question of fellow-servant, involved in this case, in Anderson v. Railroad Co., 107 Mich. 591. Upon the other questions I express no opinion.