119 Mich. 640 | Mich. | 1899
Lead Opinion
(after stating the facts). We approve the instructions of the court in directing a verdict. The following facts are established by the evidence:
1. That the engine was properly constructed.
2. That defendant had performed its full duty as to inspection.
3. It was the duty of the decedent, both after coming in and before going out, to inspect the engine, and, after coming in, to minute in a book, kept for that purpose, any repair needed. He did make such inspection, but reported nothing wrong. The wearing, if any there was, was easily discernible; He therefore assumed the risk of such defect.
5. The evidence is overwhelming that the rail was not worn sufficiently to cause the derailment. The state mechanical engineer' and several others testified that the rail was safe. But more convincing than the testimony of these experts is the fact that the rail was not removed from its place, and was still in use at the time of the trial. It is, however, insisted that there was a conflict of testimony upon this point, and that the question, if it were material to the determination of the case, should have been submitted to the jury. The testimony on behalf of the defendant is as follows: One Isaac Bisbee lived near the track. On the Sunday after the wreck, he marked the rail where the wheels ran upon it with a cold-chisel on a flange of the rail. He testified that the same rail was still there 8 or 10 days before the trial, with his mark upon it. Daniel Foley, the road-master of the defendant road, testified that the rail had never been changed. Charles Belcher testified: “ That rail is still in the track, and has not been taken away. It could not have been taken away without my knowledge.” John Walters, a section man, testified that the track was not changed, and he had never known of the rail being taken out. Patrick Wall, assistant trackmaster, testified that he did not know of the rail having been changed, and that he should have known it if it had been. Elliott F. Moore, the state mechanical engineer, testified that some days after the wreck he saw the rail, which had a mark upon it, and that it was a safe rail, and in no respect dangerous. Warren B. Stimpson, superintendent of the Grand Rapids & Indiana Railroad, testified that he had seen the rail in the track which was marked by Mr. Bisbee, and that it was a fit and proper rail. The only testimony on the part of the plaintiff to
“ Q. The same rail was there three or four days after, you say ?
‘ ‘A. I didn’t use any such expression.
“ Q. But didn’t notice the mark ?
“A. I said I looked for the rail, but the mark was gone.
“ Q. Was it the same rail?
“A. If it was, they had destroyed the mark some way. I should not think it was the same rail.
“ Q. You didn’t notice any differences except the mark, did you ?
“A. No; the rail was not worn as bad as the one that was in there the day of the accident.
‘ ‘ Q. Are you sure of that ?
“A. I looked at that particularly.
‘Q. Do you know that to be so ?
“A. I could not swear to it, no; but, in my opinion, I think so.”
Would a jury be justified, in any case, in finding that there was a serious conflict in the evidence, and in adopting the mere opinion or recollection of two witnesses, who made no measurements or careful examination, as against the positive testimony of six witnesses, who were unimpeached ? No court, having due regard for justice, would
6. There was no testimony, from any one competent to speak, that any or all of the alleged defects caused the derailment, or that the engine or rails were not in a safe condition, such as is justified by good railroad management.
From the facts, it conclusively appears that no negligence on the part of the defendant was shown. It is not enough for the plaintiff to indicate a state of facts from which there is a possibility the accident occurred. The facts must be such as to indicate a reasonable probability that the accident occurred from the negligent acts charged. Plaintiff must' establish the probable producing cause; otherwise, her case fails. The cause of this accident is as uncertain and problematical as was the cause of the accident in Whalen v. Railroad Co., 114 Mich. 512. Plaintiff’s counsel reason thus:
“Given a normal engine, runnipg upon a normal track, under normal conditions, and the engine would not leave the track. The engine did leave the track, the surrounding conditions were normal, but the engine was certainly abnormal, and w'e think the track. It is a fair deduction that the abnormal conditions caused the abnormal result.”
This reasoning would be sound, provided plaintiff had shown any causal connection between the alleged fiefects and the derailment. While juries deal with probabilities, and not with certainties, they can only do so when there are facts upon which to base the probabilities. Many accidents happen for which there is no reasonable explanation. In such cases, juries cannot be turned loose in the field of speculation. Employés assume the risk of all such accidents.
Judgment affirmed.
Dissenting Opinion
(dissenting). While fully recognizing that this case lies very near the line; I am not able to assent fully to the views expressed by the Chief Justice. I think the evidence as to the worn condition of the rail, offered on behalf of the plaintiff, while relatively weak as compared with that of defendant, raised a question for the jury. Clyde v. Railroad Co., 59 Fed. 394. I also think the question as to the condition of the center casting, and as to whether it was a probable cause of the derailment, was for the jury. Schoepper v. Chemical Co., 113 Mich. 582. I do not think it. conclusively appears that such defect in the center casting would be apparent to the engineer on such an inspection as he was required to make. As a majority of the court are well satisfied that the ruling below was correct, no good end would be served by elaborating my views.