Stanley v. Chicago & West Michigan Railway Co.

101 Mich. 202 | Mich. | 1894

Grant, J.

Plaintiff was a brakeman in defendant’s employ. The train crew consisted of the conductor, engineer, fireman, and two brakemen. The train was composed of about 25 freight cars. An empty flat car was next the tender, the remainder being box cars. It was necessary to leave two box cars at a station known as “ Linderman Siding.” The conductor communicated this information to plaintiff. The train had' stopped about-four er five car lengths from the switch. Plaintiff started to go between the cars to uncouple them. He testified that the conductor said:

“No, no; get up on that flat car, and do not pull the pin until tfye train is running. We are going to make a flying switch.”

The way such switches are. made is as follows: The train is started slowly towards the switch, slack is then given, the pin is pulled while the train is in motion, the engine then starts up, and goes past the switch, and one brakeman then turns the switch, letting the disconnected cars pass upon the siding. To accomplish this, plaintiff got upon the rear of the flat car, got on his knees, supported himself on one hand', there being no brake at. that end, pulled the pin, and, just as he was reaching over to lay it down on the bumper of the box car, the engine started ahead, throwing him to the ground, and his leg was injured so that amputation became necessary. He testified that he gave no signal to the engineer to go ahead. Before the train started for the switch the conductor had climbed upon the first box car, and taken his station at the rear, to apply the brake, in which position he was out of sight of the plaintiff. Neither could plaintiff be seen by the engineer, on account of the tender. Plaintiff had had no experience in braking upon regular freight trains, but had some time previously had a little experience on a logging railroad hauling logs onto the main track, and sometimes did switching onto the main track; and for about five months in 1889 he was brakeman on a logging railroad, 12 or 13 miles long, in the Upper Peninsula. In order to obtain the position on the defendant’s road he falsely stated to its agent who employed him that he had done braking on the Minneapolis road from Minneapolis to Sault Ste. Marie, and to the conductor that he had been railroading on the St. Paul & St. Louis road. The court directed a verdict for the defendant upon the ground that the proximate cause of the accident was the sudden forward movement of the engine, and that the conductor and engineer were both fellow-servants of the plaintiff.

It is the established rule in this State that employes of freight trains are fellow-servants. There is no evidence of any delegation of authority by the company to the conductor which made him a vice-principal. Plaintiff’s counsel seek to avoid this rule by contending that it was the duty of the defendant to secure to its employes the right to perform their work in a manner reasonably safe, and that in recognition of this duty it adopted a rule' forbidding running switches when it is practicable to do the work without, and that plaintiff had no knowledge of this rule. The witnesses do not agree as to whether this was a running switch, but for the purposes of this case it must be assumed that it was. The conductor gave no signal to the engineer to go faster when the pin was drawn. The plaintiff testified he gave no signal. The conductor testified that the plaintiff cried out, “All right.” It is too clear to require discussion that the sudden starting of the engine and flat car was^ the proximate cause of the accident, and for this, according to plaintiff’s evidence, the engineer alone was responsible. He should not have started up his engine until notified. If it was the customary way to uncouple the cars for a brakeman on his knees to lean over the opening for that purpose, certainly it was the duty of the engineer to wait for the signal which would indicate that the brakeman was out of danger. But it seems pretty clearly established by the evidence that the usual way is for the brakeman to lie flat upon the car, in which position there would be no danger. The testimony is uncontradicted that the work done in this manner is not as dangerous as coupling cars. Had the plaintiff notified either the agent or the conductor, as he should have done, of his inexperience, probably he would either not have been employed, or, if employed, would have been given instruction as to how to do the work. But under his representation defendant had the right to believe that he was familiar with the work for which he applied. We think the direction of the court below was correct. •

Judgment affirmed.

The other Justices concurred.