Shall v. Detroit & Mackinac Railway Co.

152 Mich. 463 | Mich. | 1908

Grant, C. J.

(after stating the facts). Under the above statement, it is clear that there was evidence that Mr. Shall was' working between the two cars and could not be seen by either Grisdale or any of the crew on the train. Some one owed a duty to warn him Of the approach of the train, unless (1) he knew or should have known that the train was approaching on account of the noise that it made; or (2) that it was the custom to back trains in without any warning, and that therefore he assumed the risk.

There was evidence that the deceased and Zolweg were engaged in customary and necessary work, and that they expected notice to be given to them of the approach of the train. Zolweg testified that he expected McFarland, a subforeman of the Kilby Manufacturing Company, to give them warning, and that he did.give warning, but too late for Shall to step into a place of safety. It does not appear that McFarland had ever before given warning, or that he had been instructed to give it. He would naturally give warning when he saw danger impending, and undoubtedly did in this case as soon as he saw it. He was directing and assisting in the work in which Shall and Zolweg were engaged. It was essential to give warning to him so that he might communicate it to the others. But there is no evidence that he. was notified, or that any one cried out, as it was the custom, that the train was approaching. There is evidence on the part of the plaintiff showing that McFarland stood three or four feet from the car track on some debris; that he was in position where he could have seen the train coming if he had been looking, but that he was looking at Shall and Zolweg doing the work.

One witness testified:

“When I last saw McFarland before the accident he stood with his face about half turned, * * * was looking at his men at the work.”

Another witness on the part of the plaintiff testified that McFarland was part of the time between the cars and part of the time close by directing the work when the accident happened. This witness testified that he was the first that said anything, and that when he saw the train within 25 or 30 feet of the car behind which Shall was, “I hollered, ‘ For God’s sake, boys, get out of there!’ and when I hollered I thought all three were in a bunch, —McFarland, Otto and Aleck.”

There were 100 workmen in the building. Evidently they were making considerable noise. It appears there was nothing to warn Shall and Zolweg of the approach of the train aside from the noise of the train itself. There was evidence that the train was backing in faster than usual, and that it did not stop as was customary just outside the building before backing in. Under these circumstances it cannot be said as a matter of law that the deceased was guilty of contributory negligence.

Whether Shall assumed the risk depends upon the manner in which trains had been operated for the three months previous. There was evidence tending to show that the conductor (Mr. Flint) was in the habit of stopping the train outside the building, walking down either on the track or on the outside, and “generally hollering to the boys, and saying ‘Look out, boys, the train is coming in, and I am going to take these cars out.’ ” This testimony does not appear to have been offered, or permitted to be used, as evidence of the negligent act of the train crew at the time of the accident. It was competent to show, in the absence of express instructions as to warning, the manner in which the work had been conducted. If it had been customary for the conductor to stop .his train and to give a warning of its approach, those at work in the building had the right to rely upon such customary warning. They had as much right to expect a warning under these circumstances as they would if express instructions had been given to warn them. The admission of the testimony for the purpose to which it was confined was not error. It was competent evidence that Shall did not assume the risk.

Complaint is made of the introduction of evidence as to the deceased’s habits of industry. It is contended that this had no legitimate bearing upon the question of damages. Among the facts and circumstances laid down by text writers and numerous authorities as proper evidence of damages, are the deceased’s habits of industry, sobriety, etc. 1 Joyce on Damages, § 563; 6 Thompson on Law of Negligence, § 7129; 4 Sutherland on Damages (3d Ed.), § 1268; Spaulding v. Railway Co., 98 Iowa, 205; Hunn v. Railroad Co., 78 Mich. 513, 527 (7 L. R. A. 500).

Counsel for the defendant cite and rely upon McQuisten v. Railway Co., 150 Mich. 332. The question there objected to was, “ What do you know, if anything, about his (plaintiff’s) being a-careful, prudent man?” The testimony was evidently introduced for the purpose of affecting the question of contributory negligence. I have examined the briefs and record in that case and find that there is no suggestion in the plaintiff’s brief that the testimony was admissible as affecting tbe question of damages. There is nothing in the record to show that such claim was made on the trial. The suggestion must have been made in the oral argument, as it does not appear in the brief. The entire argument in the brief of counsel for plaintiff upon this point was to show that the testimony was harmless and unprejudicial, while the entire argument on the part of the defendant was to show that it was incompetent as bearing upon the question of contributory negligence. The court in its charge to the jury made no reference whatever to the habits of the deceased as a measure of damages. What we there said as to its being admissible upon the question of damages is dictum.

It is urged that the deceased had been informed that the train was approaching. If this was so, then the deceased was clearly guilty of contributory negligence. This claim is based upon the testimony of Mr. Zolweg. His testimony is as follows:

“While I was doing that work, Mr. Shall and me, both of us had been informed that the engine was coming in to take that car out, that loaded car; we knew that in order to take out that loaded car they would have to take out the car that was partly loaded, they would have to take them both out.”

It does not follow from this testimony that Zolweg and deceased understood that the train was then approaching. It is entirely consistent with the idea that they knew it was coming in soon to take out the cars, for whose removal they were making preparations. We cannot on this testimony say that it was conclusively shown that Shall had been informed of the approaching train and the immediate danger consequent thereon.

Counsel for defendant strenuously urge that the Kilby Manufacturing Company is the negligent party if there is any negligence. As above stated, there is evidence of a custom on the part of the defendant to give warning, and that it was not the custom of the Kilby Manufacturing Co. to give warning. The manager of the Kilby Manufacturing Co. notified'tbe conductor of tbe defendant’s trains of tbe work be wanted done. Tbe conductor himself testified that after getting such information from tbe foreman of the manufacturing company, be controlled the movement of tbe cars. We cannot say under this evidence as a matter of law .that the warning of Grisdale, foreman of tbe manufacturing company, to tbe engineer to come on, was a waiver of the customary warning Or of tbe customary stop before entering tbe building. This case is very similar to Fitzpatrick v. Railroad Co., 149 Mich. 194, and we think is controlled by that case.

Judgment affirmed.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.