Docket No. 140 | Mich. | May 12, 1903
The plaintiff was a motorman on defendant’s railroad. He was injured by reason of his car coming into collision with another car which was backing up. At the point of collision there were two
The negligence alleged and relied upon appears to be:
1. That Drouillard, the conductor, and the motorman of the car which was being run backward were incompetent.
2. That the track was in bad condition, and therefore caused cars to be derailed at the switch, thus making it necessary to back the next car to another switch.
3. That defendant neglected to provide and furnish rules by which its servants could operate its cars with safety when backing up.
At defendant’s car barn there was a switch, by means of which a car might pass from one track to the other. The next such switch was a mile or more distant, and it was at the last-mentioned switch that the car was derailed. Plaintiff says that this derailment was due to a worn rail, and that such derailments had occurred there before, and' on such occasions the next car would have to back up to the car barn before it could be switched upon the return track. On two or three occasions the plaintiff had known of the cars being backed to the barn, and he had done so with his car. On this occasion he passed the barn at 8 o’clock in the evening, and the collision occurred a little later, when he met the preceding car backing up. The trolley wires were supported by posts set between the tracks, and defendant’s counsel contend that, had not the two cars been upon the same track, these poles would have intercepted plaintiff’s line of vision to the other car, not otherwise, and that this should have been notice to him the failure to observe and heed which was contributory negligence in him. No testimony was introduced by the defendant.
We are asked to hold that it should have been left to the jury to say'whether this accident was not due to the want of some reasonable and necessary rule for the backing of cars. The record shows that a printed rule required that “motormen must not start their cars until receiving either two bells or the word `Right ’ from the conductor, nor start the car backward before receiving three bells from the conductor, who must remain on rear platform while car is moving backward.” We are not advised that any other or different rule is in use on any street railway in the country. Counsel .suggest that the company should have established telephone connection with the Y, or should have required red lights on the rear of cars.
It requires more than the production of authorities asserting that it is the duty of railroads to promulgate reasonable rules for the running of trains to establish the fact that a defendant has been negligent in that respect. In Niles v. Railroad Co., 43 N.Y.S. 751" court="N.Y. App. Div." date_filed="1897-02-15" href="https://app.midpage.ai/document/niles-v-new-york-central--hudson-river-railroad-5181862?utm_source=webapp" opinion_id="5181862">43 N. Y. Supp. 751, it was said:
*174 “The doctrine imposing liability upon railroad companies, for failure to adopt particular rules, the necessity for which was not apparent to them, should not be unduly or unreasonably extended. And since the company has a paramount interest in protecting its property from injury or destruction, and also in avoiding all liability for damages to employés and passengers, * * * these considerations must have some weight in determining whether the omission to promulgate a particular rule constitutes a neglect of duty in not being able to foresee certain contingencies. ”
And in the case of Berrigan v. Railroad Co., 131 N.Y. 582" court="NY" date_filed="1892-02-12" href="https://app.midpage.ai/document/berrigan-v--new-york-lake-erie-and-western-rd-co-3624358?utm_source=webapp" opinion_id="3624358">131 N. Y. 582 (30 N. E. 57), it was said:
“ There is no proof in the case that rules for such a case had ever been promulgated by any other railroad company, or that it was reasonable or practicable to provide against the occurrence of such an accident by a rule. The learned trial judge submitted to the jury the question whether the defendant was at fault in omitting to make and publish such a rule. This opened to the jury a wide field for speculation and conjecture. In. the absence of some proof on the part of the plaintiff that such a rule was in operation by other roads, or of persons possessing peculiar skill and experience in the management and operation of railroads to the effect that such a rule was necessary or practicable under the circumstances, or unless the necessity and propriety of making and promulgating such a rule was so obvious as to make the question one of common experience and knowledge, the court is not warranted in submitting such a question to the jury. Besides, it affirmatively appeared that the rules in use by the defendant provided in a reasonable way against the occurrence of such an accident, so far as such casualties can be prevented by rules. ”
The following comment in Morgan v. Iron Co., 133 N.Y. 666" court="NY" date_filed="1892-05-24" href="https://app.midpage.ai/document/morgan-v--hudson-river-ore-and-iron-company-3616595?utm_source=webapp" opinion_id="3616595">133 N. Y. 666 (31 N.E. 234" court="NY" date_filed="1892-05-24" href="https://app.midpage.ai/document/klupp-v--united-ice-lines-3621323?utm_source=webapp" opinion_id="3621323">31 N. E. 234), is apropos:
“The recovery was based entirely on the absence of rules. It was not suggested at the trial, nor is it on this appeal, what particular rule the defendant could have adopted that would have been likely to prevent the accident. No evidence was given that any rule is in use in business of a similar character by other corporations of*175 the same class carrying on like operations, nor was there any evidence by experts or other witnesses to show that any rule was necessary or practicable in such cases. It was left to the jury to say whether or not it was a case for rules, and, if so, what particular rule should have been adopted. We know nothing with respect to the views entertained by the jury on these questions, except so far as they are indicated by their verdict for the plaintiff. It is not probable that they concluded that any definite rule should have been promulgated, but were content to 'hold that, as the plaintiff was injured, the defendant ought in some way to have prevented it, or, in case it did not, respond to him in, damages. Almost every conceivable injury that a servant receives in the course of his employment may in this way be submitted to a jury, and with the same result.”
This accident occurred on a street railroad, where cars are expected to be under such control as to be stopped when the exigencies of public travel require it, and are incident to many delays that are not common upon steam roads. They are started and stopped at any and all points where occasion demands, and not in obedience to telegraph or telephone commands. As said by Chief Justice Montgomery, with the approval of the entire bench, in Mertz v. Detroit Electric Railway, 125 Mich. 15 (83 N. W. 1036):
“The distinction between steam railways and street railways has been often pointed out. It is a fact that must be assumed to be within the knowledge of all persons sui juris that a steam-railway train cannot be brought under control within a short distance, while it is equally known that street cars in cities can be kept within control sufficiently to prevent collison with vehicles lawfully on the track.”
See cases there cited.
We think the learned judge did not err in declining to submit this question to the jury.
There is another .'reason why plaintiff’s contention should not prevail. He was not a passenger, but an employe, who was familiar with defendant’s methods and rules; he knew that cars had been backed on this piece of road, and
The plaintiff would have had the trial court permit the-jury to find that the responsibility for this collision rested upon Drouillard and Clixby, the conductor and motorman of the car that was backing up. Our attention is not called to any evidence that tends to show that it was due to any negligence of Clixby. Hence it is unimportant whether he was competent or not.
The testimony regarding Drouillard’s negligence consists in the statement that he did not stand on the back platform all of the time that his car was backing up, it being shown that he took up a fare or two from a witness who got on at Twenty-Sixth street. This was the testimony of the passenger, and he said that Drouillard was in the act of taking the fare when the collision occurred. One Phelps, testified that Drouillard jumped off from the car with two others, ^pulling the bell, just before the accident. His. jumping from the car after giving the signal to stop, and when he could do no good by remaining on the car, would not be culpable nor negligent. His negligence, if any, was his absence from the platform, where the rule required him to be, and his consequent failure to stop his car earlier. It is not for us to say that the passenger’s evidence is false, or that Phelps’ is true. Taken together, this testimony raised the question of Drouillard’s negligence as a. cause of the collision, and made the question of his competency a proper one for consideration, if his incompetency, and defendant’s negligence in relation thereto, were-proved, to relieve the plaintiff from the effect of the fellow-servant rule, which is otherwise clearly applicable.
Before a master can be held liable on the ground that
The judgment is affirmed.