Michigan Central R. R. v. Austin

| Mich. | Jan 28, 1879

Campbell, C. J.

We think plaintiff below had no ground of recovery. The accident which happened to him occurred from his being thrown off a foot board on the rear of a tender while backing up. This board was a narrow board which the switchmen were accustomed to get on and off while coupling and uncoupling cars and opening and closing switches. It had a bar above it intended for them to hold on to to keep their footing and Austin had let go this bar to shift hands in holding his lantern when he was thrown off by a jerk which he supposed was caused by striking a rail which had lost a portion of its surface and thus became somewhat depressed.

Austin was a switchman employed daily at this place and with every means of knowledge of the track possessed by any body. He knew the track was rough and that defective rails were often put into the side-tracks which were not used for general business. He must have known that a road which was thus rough and uneven would entail serious .risks on any one standing on such a narrow foot-board, unless he held on to the support provided.

Moreover, the whole fault, if there was any fault in the condition of this track, was due to the neglect, as he himself testifies, of the trackmen who were engaged in the same common service with himself. The risk of such a track was one of the ordinary risks connected with his employment. I do not think the evidence tends to show that it is negligent for a railroad company to use rough materials for its yard lines; and whether it was or not, Austin knew the ways of the road and ran the risks.

I think there was no evidence to go to the jury to maintain a recovery and that judgment should be reversed and a new trial granted.

Graves and Cooley, JJ., concurred. Marston, J. I think this case was properly submitted to the jury, as the evidence tended to sustain the plaintiff’s case.