| Mich. | Mar 4, 1892
Lead Opinion
Plaintiffs decedent was fatally injured December 17, 1888, in the freight-shed of the defendant, and died shortly after. He was a switchman, and the switching crew, aside from the engineer and fireman, consisted of one Willis, the conductor, and one Pratt, another switchman. They were engaged in switching cars at the time. The train consisted of about 20 cars. The engine, with 12 cars attached, was moving out of the shed upon an up grade. Four rows of posts extended lengthwise of the shed, and 20 feet apart, to support the roof. The engine and four cars were outside the shed. Pratt stood upon the fourth car from the engine. The track on which the cars were running at the time was north of the second row of posts from the north’. The distance between the car on which the deceased was and the post
The negligence alleged is that the defendant was then using an old and defective engine, which permitted
“ In pursuance of the order of said Willis, was climbing down the south side of one of said cars to uncouple the same from the next car, the said train of cars, and all of them, being then stopped and standing still; and owing to the grade on said tracks, said cars began to move back in said freight-shed, on the northerly track therein, some distance from the fourth post from the entrance of said shed, when at that moment the said Willis communicated to the said engineer, Landon, by means of another employé, standing on the top of one of said cars, some distance outside of said shed, and signaled to said engineer to stop said train, so that said Pennington could descend safely on the south side of said car, and uncouple said car from the car next to it; and because of the said defects in the throttle valve and valve stems of said old, defective, unsafe, and dangerous engine, and of the dense quantities of steam escaping therefrom, in consequence of said defects, the said engineer was unable to see and unable to comprehend said signals, and unable to stop said train, and did not stop said train, and by reason thereof, and because of said post being so close to said cars, as aforesaid, the Baid John W. Pennington was caught between said post and said car, and crushed and greatly bruised and injured.”
The train was moving at the rate of from three to four miles an hour.
There are two insurmountable objections to the plaintiff’s recovery.
1. There is a fatal variance between the declaration and the proofs. The declaration is framed upon the theory that the cars had stopped; that they had commenced to back up, on account of the down grade, while deceased was climbing down; that Willis, not the deceased, signaled to the engineer to stop them, so that he could
It is insisted that this question was not raised in the court below, and therefore must not be considered here. The record does not disclose the positions taken by the defendant upon the trial, nor does it show that the court was requested to direct a verdict in its favor, which was done, when the plaintiff rested his case. The defendant is not, therefore, barred from raising it here.
2. The deceased was familiar with all the surroundings. He knew that the train was in motion; that, if it did not stop, he must strike this post, which was less than 20 feet distant. He chose to descend before knowing that his signal had been received and acted upon. He knew the engine, for he had worked with it at various times for from three to four years. Had he looked, he could have seen the steam, and he was obliged to look directly towards it in order to give Pratt the signal. Under these circumstances, he must be held to have assumed the risk and danger in descending the ladder. There is no evidence nor claim that the rules of the defendant required the deceased to descend from the cars when in motion in this dangerous place. Such requirement would be inhuman and cruel in the extreme. There is nothing in this record to show any necessity for such
Judgment affirmed.
Concurrence Opinion
I concur in tbe result; but, as it does not appear that tbe point of variance between proofs and declaration was raised in the court below, I think that tbe objection comes too late.