92 Mich. 533 | Mich. | 1892
Plaintiff’s decedent, John Haney, was employed as brakeman on one of defendant’s logging-trains. The defendant was engaged in getting out logs, and for this purpose constructed a railroad about eight miles in length into the woods. It constructed branches as its business required. After removing the timber in one locality the rails and ties were taken to another. The deceased, at the time of the accident, was engaged in running trains from one of these branches to the
The negligence counted on is that the defendant left this tree standing too near its track, and failed to remove it after notification.
We need not determine the negligence of the defendant.. Admitting that there were two concurrent causes, viz., the tree standing too near the track and the improper loading, yet the fact remains that the deceased knew of the former, and his clear duty was so to load his trains as to avoid the danger. The defective loading, for which he alone was responsible, was the proximate and dominant cause of the injury. The fact that 500 loaded trains had passed in safety is conclusive upon this point, and the sole responsibility for the injury cannot be thrown upon the defendant by saying that, in the judgment of the deceased, or of any one else, the car was properly loaded. But for the tree, the car was undoubtedly properly loaded, but with the tree standing it is impossible to hold that it was properly loaded, or to hold that it was a question of fact for the jury.
Judgment reversed, and a new trial ordered.
I cannot agree with the majority of the Court in the conclusions arrived at in this case.
Thomas Kelly was defendant’s superintendent, and "William Wilson was its foreman. The tree in question was so near the track that the top of the cab of the engine passed within 5 inches of it. It was a dead white pine shell. The top of the cab was 6 feet wide, the bed of the logging cars was from 8|- feet to 9 feet wide. The train approached the tree at the rate of 18 miles an hour. The engineer states: ccWe were accustomed to run out of there just as fast as we could. We couldn’t make the grade otherwise.” Kelly, who was called for defendant, says that it was usually necessary to clear a space of 13 feet for logging trains, and that this tree was within this space. This tree had been struck at
It was not claimed by either the superintendent or the foreman before the injury that this tree was not necessarily dangerous, nor that it was only dangerous when the cars were, improperly loaded; nor did either of them, when complained to about it, reply that it was not dangerous, or that the danger could be avoided by properly loading the cars. The proximate danger before the injury was the tree. No one at that time claimed or intimated that it could only be dangerous in -view of carelessness in the loading of the cars. The superintendent and the foreman both knew that that tree had been struck at
Wilson, the foreman, is the person who had charge of the making of the logging way. He had been directed by the superintendent to have this tree cut down. He it was to whom complaint had been made by the engineer and by deceased, — not once, but twice, — and who had promised to have the tree cut down. It is this same Wilson who now places the tree 4| feet beyond the rail, or just outside of the 12 feet which he was instructed to clear for the way; who testifies that this log was a churn-butted log; that it was crooked; that it had been sawed close to the ground; that the roots had been left on, and flared out; that this log lay out more than half way from the spikes; that it hung in the chain; that the log was 30 inches in diameter at the butt, and from 20 to 25 inches at the top; and that it was improperly loaded. Wilson is contradicted in almost every particular, not only by witnesses for plaintiff, but by witnesses for defendant as well. The engineer, who was a witness for plaintiff, and Conway, who, with Ward, loaded the car, and who was called by defendant, both say that the log was 24 inches in diameter at the butt, and 20 to 21 inches at the other end, and deny that there was anything unusual about the log, or that it was either rooted or flared at the butt. These cars were being loaded with reference to a long haul, and the train was being made up from this spur track. The logs were heaped upon each truck, and the first tier was kept in place by spikes 2 inches high, placed about 2-J inches inside of the outer edge of the truck bed. After the cars were loaded, the
The train consisted of an engine and two cars loaded with logs. The engineer, the foreman, and Kelly, the superintendent, rode upon the engine. There was no tender, and all three were in a position to have seen this ear and this very log, and to notice if the ear was loaded as Wilson undertakes to say that it was. Deceased stood upon the rear platform of the first car, and several others were upon the rear platform of the second car. The superintendent, as well as all the other persons upon the car, knew of the situation of the tree as well as did deceased, yet neither superintendent, engineer, nor fireman, who were in a position to observe this car, thought at the time that there was any danger because of the loading of the car, or that it was improperly loaded. It is true that Conway testified that after the cars had been coupled, and after decedent had taken his place upon the rear end of the first car, and just as the train was about to start, or just as it started, he (Conway), who was on the rear platform of the second car with several others, said: “Boys, we had'better look out, for that log on the front car is liable to strike the tree." It is evident that this language was not addressed to decedent, who was on another car; nor does Conway pretend that it was. He says, however, that Haney must have heard him, because he called out, “Let her go.” It was Haney who gave the signal to start the
It will be remembered that Conway and Ward loaded this car, and placed this log in the very position it then was. Conway does not pretend to say that the car was improperly loaded, nor does he attempt to give the distance that this log protruded. No witness except Wilson pi’etends to say that this log was not loaded just as the plan of the car contemplated that it was to be loaded. Kelly says that logs rolled up against these spikes would extend out beyond the bed of the truck, according to the size of the log, sometimes a foot, and even more than that; and he gives it as his opinion that a log extending out 16 or 18 inches would strike this tree. There is no testimony tending to show that this log protruded even 12 inches, except that of Wilson. According to the superintendent’s testimony, this log, properly and safely loaded with special reference to this tree, by a party who carried in his mind the exact distance between the track and that tree, and extending out over the edge of the truck not more than a foot, would' pass within from 3 to 6 inches of that tree; but no allowance is made for the curve of the track, or for the rocking of two bunk cars loaded with saw-logs, which were going up grade at the rate of 18 miles an hour over an unballasted temporary logging track. No one except Wilson undertakes to give the distance that this tree stood outside of the rail, and he places it 44-feet, or 21 inches from the outside edge of the truck, at a point where no log was likely to reach it. The tree had been struck twice. No one pretends to say how far the logs extended that struck it on those two occasions. It would be an outrage now to impose upon the dead man a degree of accuracy with reference to distances
Conceding that it was Haney’s duty to see that the cars were properly loaded, and properly loaded with reference to this very obstruction, there was no fixed standard by which he could be guided. It was, in any event, a mere matter of calculation or of judgment. There is no such case made here as will warrant the Court in finding that the car was improperly loaded, or that deceased was negligent. It does not even appear that the front end of this log struck this tree. A piece from the top of the tree broke off and fell upon the train, and the tree itself uprooted, and fell over the track. Nor does it appear that the tree was broken or .indented at the point struck; and the result may have been produced by a sudden lurch or rocking of the car, forcing the log against the tree.
The superintendent, the foreman, the engineer, the brakeman, and others had all recognized this tree as a dangerous obstruction. It had been struck twice in the ordinary course of business. Both superintendent and foreman knew that it had been struck, and, upon complaint made to them, had promised to remove it. The decedent had, in effect, said to them that in the performance of his work, notwithstanding the exercise of proper care, this tree was a dangerous obstruction. The superintendent and foreman both recognized the reasonableness and propriety of the demand, and the dangerous character of the obstruction, and promised to remove it. In such case it cannot be said as a matter of law, after the anticipated and foreseen has happened, that the proximate cause of the killing was the improper loading of the car. Under such circumstances, it would be rank injustice to impose the burden of extreme caution, and of avoiding the danger, upon the operative. The
In my opinion, the judgment should be affirmed.