Irvine v. Flint & Pere Marquette Railroad

McGrath, J. This is a case for negligence. Plaintiff's intestate was killed while braking upon defendant's road. It was alleged that the cars were improperly loaded; the lumber with which they were loaded being projected over the ends of the cars. The declaration alleges that— “ It became and was the duty of said defendant to see that such cars should be so loaded that the employés of defendant could, with reasonable safety to themselves, go upon and over such cars, and set or loosen or tighten the brakes on same when so loaded, if it became necessary for such employés to do so in the discharge of their duties; and it further became and was the duty of said defendant to carefully and diligently inspect any such cars after being loaded, and before attempting to transport the same over any part of its said railroad or the-branches or side tracks thereof, to see that they were so-loaded that the employés of the defendant could with reasonable safety to themselves go upon and over such cars, and set or loosen and handle the brakes and other appliances for working such cars.” The testimony tended to show that the cars used were coal-cars, boxed in to the height o'f from 2 to 2-£ feet. The boxes did not cover the entire floor of the car, but left a space about 15 inches in depth across the brake end of each car, for the use of the brakeman. The lumber was piled on the cars to the height ■ of 5 or 6 feet-from the car floor, and extended beyond the boxes, from, [418] 8 inches at the top of the box to 18 inches at the top of the lumber, and beyond the end of the car, projecting further as the height increased, until it left a space between the lumber of but 15 inches on the surface of the lumber. The space left on the car for the brakeman was partially covered. The jury were clearly justified in finding that the cars were improperly loaded. The next question which presents itself is, were the cars inspected? If they were, orif the company provided the means for their inspection by a fellow-servant, and the inspector neglected his duty, then there could be no recovery. The head brakeman testifies as follows: “Q. Did the company at that time ordinarily have car inspectors at the dock to inspect the cars after they were loaded? “A. Well, the car inspectors are around there. “Q. Were they there at the dock to inspect these cars? “A. I couldn’t say. “Q. If these cars, or any cars loaded at the dock, were inspected, do you know of it? “A. Well, if they are broken I do. “Q. Well, do you know of any car inspectors being upon that dock inspecting cars after they were loaded with lumber, to see whether they were safely loaded to handle or not? “A. No, sir; I couldn’t say — I didn’t be there all the time, nor any time, hauling these cars out — whether they were inspected or not. It was not a part of my duty to ■see that no cars were moved excepting such as were properly loaded.” The inspectors referred to by witness in answer to the first three questions were evidently the ear inspectors, ■and not inspectors appointed to look after the loading of the cars. If there were no inspectors, — no persons whose ■duty it was to inspect, — it was not necessary to prove there was no inspection. The declaration alleged it to be the duty of the company to see that the cars were [419] properly loaded, so as not to imperil tbe lives of its employés. The testimony tended to show that the oars were so loaded as to increase the hazard of braking them, and, in addition, that no provision was made by the company for their inspection; and the jury were justified in their finding that there was no inspection. Servants assume the ordinary risks of their employment, but not those extra hazards which spring from the failure of the master to exercise reasonable care in providing such rules and regulations for the conduct of his business as to afford his servants reasonable means of protection. It is as much the duty of the company to see that cars are so loaded that brakemen will have reasonably safe access to the brakes, and an opportunity for the discharge of their duties, as it is to see that proper appliances are provided. Railway Co. v. Hall, 78 Tex. 657 (15 S. W. Rep. 108); Byrnes v. Railroad Co., 113 N. Y. 255 (21 N. E. Rep. 50). But it is urged that the work of shunting these cars was done in the day-time, and the defects, if any, must have been apparent to the deceased, and there is no evidence that he made any protest or objection. The question of contributory negligence was not raised in the case. At the close of plaintiff’s testimony, counsel for defendant made the following request: “ May it please the court, we ask that the case be disposed of. There has been no proof introduced here tending to show any negligence on the part of the defendant.” The trial judge instructed the jury upon this point as follows: “ If the deceased, in the exercise of ordinary care upon his own part, could see that the ears were so loaded as to be unsafe for him to go between the cars and set this brake, while the cars were in motion, and he took upon himself the risk of going between the cars, if he suffered [420] injury he contributed towards tbe occurrence of tbe accident, and plaintiff cannot recover.” And again the court said: “If the deceased could have observed the alleged dangerous condition of the car, and voluntarily placed himself in such position that the accident was sustained, then the plaintiff cannot recover.” Even though this question had been raised, there is no proof that decedent saw these cars before he went to brake them. These cars were attached to a train in which there were several other cars, known as “flat-cars.” The cars were taken but a short distance, — about 10 car-lengths, — and kicked, in upon a side track. There were no other cars kicked in; hence there were no other brakes. Other cars were standing on this side track, one of which was a box-car, which was being unloaded. A witness says: “There were some men unloading a box-car on this same track, shoveling some coal out. That was the idea in stopping this car, so it wouldn't shove this car out of place. That car could be seen from the switch. The cars were being shoved back towards this side track, very slowly.” As soon as these two cars were upon the switch, the coupling-pin was drawn, and they were allowed to run wild. The head brakeman says: 1 “ Irvine and I went on this train to brake the cars. That was our duty there. I stood on a flat-car. I saw Irvine on one of the lumber-cars, just before those cars went upon the side track. There was no other person but Irvine on the lumber cars.” A servant is not negligent in presuming that his master has done his duty. He was not, therefore, negligent in failing to examine the cars, to see if his way was clear and safe, before it became necessary to brake them. When these cars were kicked in upon the side track they [421] were moving slowly. It may not have been necessary to apply the brakes at all, except for the presence of the other car, which was being unloaded. It became necessary to apply the brake. He starts to do his duty, and discovers the dangerous situation. What was his duty then? What would a prudent brakeman have done under such •circumstances? Permit the two cars to crash into the other car, and endanger the lives of those at work there, or endeavor to stop his car, and avert that danger? Whom could he at that time complain or protest to? In determining the question of contributory negligence of an operator whose duty lies in the line of danger, all the circumstances must be considered, particularly those exigencies which render the prompt performance of his duty necessary. An engineer ought not to be charged with negligence because he fails to abandon his engine between two stations when he first discovers a defect which increases the hazard of its operation. The judgment is affirmed, with costs to plaintiff. Morse and Long, JJ., concurred with McGrath, J.