Beauchamp v. Michigan Central Railroad

Sharpe, J. Ralph Beauchamp was in the employ of defendant in its yards at West Bay City as a member of its switching crew on February 21, 1923. He was thrown from the top of a box car by its impact with a car coupled to the locomotive, and sustained injuries from which he died a few hours later. Plaintiff, as administratrix of his estate, brings this action to recover damages therefor. She had verdict for $15,000. At the close of the proofs, defendant’s counsel moved for a directed verdict, which was taken under advisement by the court. It was renewed after verdict and denied, and judgment entered on the verdict. It is here insisted that this motion should have been granted. We must consider the facts in the light most favorable to plaintiff’s right to recover. There is, however, no substantial dispute as to how the accident happened. The switching crew consisted of an engineer, fireman, conductor and two brakemen. Their *548 operations took them to what is known as the Clute Coal Company’s yard. While there, the fireman left the cab in response to a call of nature, and one of the brakemen took his place. Some cars had been pushed upon one of the sidings. The conductor rode on one of them to stop them where they were intended to be placed. He had not returned at the time of the accident. It was discovered that two box cars which had been placed on a siding had not been pushed in far enough to clear. The box car coupled to the locomotive stood about 40 feet from the switch. The deceased opened the switch and signaled the acting fireman, on whose side he was, to back up. He then passed between the cars. The fireman informed the engineer that deceased had passed over to his side. The engineer, in response to the signal, backed his locomotive. Unknown to both the engineer and fireman, the deceased went up the ladder of the standing car nearest to the switch and released the brake on it. While yet on the car, the car attached to the locomotive came in contact with the standing car, the impact causing the deceased to fall between them. The negligence of the defendant is predicated on the conduct of the engineer. The court charged the jury: “If * * * this locomotive and car was operated in an unusual manner, and was driven back with an unusual force, and not in the manner in which a careful, prudent engineer, a capable engineer, would have done, then it is for you to say whether or not they were not guilty of negligence, and if they were guilty of negligence it is for you to determine whether or not that negligence was the proximate cause of the injury; if it was not then there could be no recovery, and if there was there would be.” The conductor, called for cross-examination by the plaintiff, in answer to questions put by her counsel, testified: *549 “My duties in connection with actual operation in addition to keeping these records was to see that the work was done, direct it I mean. It was just as much my duty, as the other two men on the job, to signal the engineer ahead or swing him back or signal him to stop, in the ordinary way of doing business. We would couple onto cars when other cars were attached to the engine at different times; there is always a man to guide the engineer by giving him signals. According to the way you want the engineer to go, if you want him to go ahead he would signal that way (shows), and to back up (showing) that way. “Q. Supposing the engineer was signaled to back up his engine for the purpose of coupling onto another car, was there any one to give him a signal as to when he was getting near that car so that he could slow up? “A. Yes, sir. “Q. How was that signal given? “A. Well, sometimes we take both hands like that (showing) or sometimes just take one hand (indicating). “Q. Indicating by signals of the hands the nearness of the car to be coupled to the other car to which it was to be coupled? “A. Yes, sir. “Q. So that he could regulate his speed and not hit it too hard ? “A. Yes, sir. “Q. And one of the switchmen would give those signals to the engineer? “A. Yes, sir. * * * “Q. It is customary and proper practice is it when an engine with cars attached, or without cars attached, backs up to couple onto another car or shunt it, for a switchman to be on the ground and signal the ■engineer? “A. Yes, sir. That is customary and proper practice. The purpose being to guide the engineer and indicate to him the nearness of his approach to the car that he is coupling onto.” The practice as thus explained seems to be conceded. In the absence of the conductor, the movement was in charge of the deceased. He was master of the sitúa *550 tion. It was the duty of the engineer and fireman in handling the locomotive to be governed by his signals. They were unable to see the car to which the coupling was to be made. It was the duty of the engineer to keep on backing up until he received a signal to slow down, indicating his nearness to it. It was the duty of the deceased to give such signal. None was given. We are unable to see how the act of the engineer, in backing up without slowing down when the cars were to meet, can be said to be negligent. He had a right to expect that he would receive the signal to do so in time to act. There is no claim made that the engineer knew, or had any right to expect, that the deceased would leave the ground, after giving the signal to back up, and go up the ladder of the standing car to release the brake. If he deemed it necessary to do this, he should have done so before giving the back up signal. This signal started the locomotive and car attached to it in motion, and under the practice that motion would not necessarily lessen until a signal was given to reduce the speed. The engineer testified: “I had an idea he might have went in to adjust the couplings or something of that kind.” He had no “idea that he would be on top of the car,” or “that the brake had been set on that car;” he expected he would “come over on my side and give signals.” There is proof that, as the cars came together, they “struck hard,” that there was a “loud crash,” “a louder crash than usual.” This was but the natural result of the movement as made. The engineer had a right to expect a signal to slow down when nearing the car to be coupled to. No such signal having been given, it would necessarily follow that the cars would come together with greater force than was usual. The distance being not to exceed 50 feet, a high degree of *551 speed could not have been attained.. The weight of the locomotive and car attached to it and the car struck was such that, unless the speed was reduced to the minimum, there would be much force in the impact. Such force as compared with that usually resulting from the coupling of cars is not in itself evidence of negligence on the part of the engineer. His conduct in handling his locomotive must be viewed in the light of the signal he momentarily expected to receive informing him that the car attached to his locomotive was nearing the one standing on the switch and that he should slacken speed before reaching it. The engineer had been in the employ of the defendant in that capacity for 34 years. There is no evidence that he was not competent and careful in the discharge of his duty. We are impressed that under this record he should not be deemed guilty of an act of negligence causing the death of his fellow workman. But few cases have been called to our attention in which a similar question was presented. In Hunt v. Railroad Co., 181 Iowa, 845 (165 N. W. 105, L. R. A. 1918B, 369), a conductor of a freight train was thrown violently to the floor of the caboose while standing therein and rendered unconscious for several hours as a result of the sudden application of the brakes in order to stop at a water tank. He testified that it was “the most violent shock” he had experienced in seven years of service. The action was brought under the Federal employers’ liability act. The court said: “That such a stop would result in a jerking more or less severe is a matter of such common knowledge as to have come practically within the range of judicial notice. The books are full of cases where negligence has been predicated upon the jerking of a freight train, and it has been held with practical unanimity that the jerking of a freight train, even though severe and unusual, is not of itself evidence of negligence as to employees operating the same. It becomes negli *552 gence only when the injured employee is known to be in a position of peril.” Many cases are cited in support of the holding. In Southern Railway Co. v. Carter, 164 Ala. 103, 108 (51 South. 147), the court said: “Sudden start and resultant injury proven, the burden was still upon the plaintiff to show that the engineer owed a duty to the plaintiff in the situation in which they were — in other words, to show that the engineer knew, or in the exercise of reasonable care ought to have known, that the plaintiff was in a position of peril when the engine was moved. That he did not know the plaintiff’s peril is not debatable under the evidence.” In McDermott v. Railroad Co., 56 Kan. 319 (43 Pac. 248), the facts and holding are sufficiently stated in the first paragraph of the syllabus as follows: “In an action against a railroad company to re.cover damages on account of the death of a brakeman killed while making a flying switch, where the only negligence charged is that the engineer ran at an unnecessary, unusual and dangerous rate of speed, and the jury find specially that the engineer at the time of the accident was under the control of the deceased as to slacking up and going ahead, and that he obeyed the signals given him by the brakeman, held, that such special findings conflict with and overturn a general verdict in favor of the plaintiff.” The declaration also charged that— “defendant negligently and carelessly failed and omitted to furnish a sufficient and adequate crew for the operation of said business of said train.” The undisputed proof showed that it was the practice when switching for one of the brakemen to relieve the fireman when he was temporarily absent. The deceased knew that the brakeman was so employed. He also knew that he alone was on the ground at the time he gave the signal to back up. The engineer *553 was under his orders and not in any way chargeable with lack of prudence in obeying the order in the absence of the conductor. The usual switching crew was provided by the defendant. In our opinion no negligence as to it can be predicated upon the act of the deceased in ordering the movement of the locomotive when he alone was present. We feel constrained to hold that defendant’s motion to direct should have been granted. The cause will he remanded, with direction to the trial court to enter -a judgment for the defendant. Defendant will have costs. Clark, Steere, Fellows, and Wiest, JJ., concurred with Sharpe, J.