Whalen v. Michigan Central Railroad

Grant, J. (after stating the facts). 1. There is nothing in the record to indicate that the trainmen were not properly instructed in the use of the automatic conductor’s cord when the engineer whistled for brakes. The law does not require that all the minute instructions in regard to the running of trains shall be printed for the use of its employés. If the trainmen whose duty it was to pull this cord in case of emergency were properly instructed orally as to its use, this was sufficient. Every employe who was examined upon this point testified that he was instructed in its use. If, therefore, the brakeman or conductor failed to perform this duty when plaintiff whistled for brakes, this was the negligence of a fellow-servant, for which defendant is not liable. The risk of such negligence is one which he assumed. As is well stated in the brief of defendant: “It might as well be •said that the defendant should print a rule telling a brakeman how to turn a hand brake, or how to couple two cars together. It is part of their training, and need not be printed in any rule.” Plaintiff has failed to show that the printed rules and — 521 — regulations adopted by the defendant for the management of its trains were not reasonably sufficient. They were adopted by men skilled and experienced in railroading, and after years of experience. They had proved sufficient prior to this accident. The defendant had for several months been running special trains under this system to and from the Columbian Exposition at Chicago, and it had proved effective, not an accident having occurred before. And now, when an accident has occurred in a manner wholly unaccountable, a jury is permitted to speculate and find culpable negligence upon the theory that the defendant might have avoided the accident by the adoption and publication of some other rules. There is no conflict of evidence, and therefore no question for the jury. Bailey, Mast. Liab. 75. There is no evidence that any other railroad has adopted other regulations found to be more effective. Slater v. Jewett, 85 N. Y. 61. In that case the court say of the rules adopted, “They had been in operation several years before .the disaster, and no accident had ever taken place in the use of them.” 2. Plaintiff was an experienced engineer; was entirely familiar with the rules and regulations of the company, and with the signals adopted for his own protection, and the protection of passengers and the property of the defendant. He knew the location of the semaphore at Jackson, the method and purpose of its use, that he was liable to find it turned against him, that he should approach it upon the supposition that it would be so turned, and that the track at Jackson station would be occupied. He also knew that the air brake under his control was sufficient to stop the train, and that, if this failed, the automatic or conductor’s valve was usually sufficient for the purpose. Neither he nor any one else made complaint. He therefore assumed the risk of the unexpected, unusual, unexplained, and unaccountable failure of the air brakes to work. Illinois Cent. R. Co. v. Neer, 26 Ill. App. 356. 3. Defendant equipped the train with all the tools, — 522 — machinery, and appliances which experience and skill had shown to be essential to safety. It had employed competent men, and properly instructed them in the use of these appliances, which had proved almost universally sufficient. They proved sufficient in this case until within three to five minutes of the failure of the braking apparatus to work. It is conceded by the plaintiff in his testimony, and by his counsel in their briefs, that, if the apparatus had operated, the train would have been stopped, and the accident avoided. No similar failure of the air brakes to work is shown. One witness testified that he had once known of an angle cock being turned, but under what circumstances, and whether it was turned before the train started, or when in' motion, does not appear. This was no warning to defendant that the entire system of air brakes was likely to fail at any time. Robinson v. Wright & Co., 94 Mich. 283. So well has the system worked that Mr. Mathews, the rear brakeman, a witness for plaintiff, testified that during his employment by the defendant he had never been signaled for brakes by the engineer. He had been so employed for nearly seven months before the accident, and how much longer does not appear. If the turning of the angle cock prevented the operation of the brakes by the engineer from his engine, it is wholly unexplained how it became so turned. Various theories are advanced, which it is unnecessary to mention. There is no tangible evidence to support any theory. All we know is that the angle cock was found turned after the accident, and that it could not, according to the testimony, have been turned from three to five minutes before. No one advances any theory as to why the conductor’s valve failed to work and set the brakes. But the jury were left to infer negligence because, in their opinion and that of some of the witnesses, the semaphore should have been placed farther east, so as to guard against any possible failure of the brakes to work. It is easy to see how an accident might have been prevented, but the possibility of guarding against it is not — 523 — culpable negligence. Schroeder v. Car Co., 56 Mich. 132; Redmond v. Lumber Co., 96 Mich. 545; Werbowlsky v. Railway Co., 86 Mich. 236 (24 Am. St. Rep. 120); Sjogren v. Hall, 53 Mich. 274. In Schroeder v. Car Co. this court said: “When an injury has happened, it may be easy to point out, as it is now in this case, how some particular precaution would have given protection. But the fact of injury, and the possibility of guarding against it, do not necessarily make out a case of culpable negligence. Very few acts in life are done with such care to prevent accidents as would have been possible, and the law only requires of any one that degree of care and prudence which persons who are reasonably careful ordinarily observe. To require more would put everybody under restraints in the management of his business and in his dealings with others which would be more hurtful in the embarrassments they would cause than beneficial in the protection they could give against injuries.” Yet the learned circuit judge left it to the jury to decide whether it was not the duty of the defendant to guard against the possibility of accident by placing this semaphore at such a distance farther east as they might think would have enabled plaintiff to stop the train without the brakes. No complaint had ever been made of the location of this semaphore. It could be seen, and was in this instance, according to the testimony of plaintiff and. the fireman, seen by them, for more 'than half a mile. As already stated, this was the year of the Columbian Exposition at Chicago. - The defendant had been engaged in running many trains daily, and up to this time the semaphore had proved sufficient. It would in this instance have done so but for the unaccountable failure of a piece of machinery to operate. The semaphore had been placed by men of experience in railroading, who located it according to their best judgment. We see no justice in a rule which would permit a jury to find that it was not properly located. The instructions, if adopted, would abrogate the well-established rule stated by Mr. Bailey, as follows: — 524 — “It must be kept in mind that ordinary care, as to safety of appliances and premises, does not require that every possible contingency must be anticipated and guarded against, but only such contingencies as are likely to occur. A master is not bound to change his machinery in order to apply every new invention or supposed improvement in appliances, and he may even have in use a machine or appliance shown to be less safe than another in general use, without being liable to his servant for the consequences of the use of it. If the servant thinks proper to operate such a machine, it is at his own risk. All that he can require is that he shall not be deceived as to the degree of danger that he incurs.” Bailey, Mast. Liab. 18. 4. It is stated in plaintiff’s brief that he was notified at Grass Lake that the train ahead had left Jackson station. We find nothing in the record to justify this statement. Probably it is based upon the fact that he was not stopped at Grass Lake, but the signal there notified him to proceed. It did not, however, notify him that the train in advance had left the station. He proceeded with knowledge of rule 73, and that there was another signal which he might find against him at the junction, and he knew it was his duty to watch for it and heed it. If he acted upon the belief that the track was clear to the station, and ran his train accordingly, it may account for the accident. It is also urged in this connection that the defendant might have avoided the accident by notifying plaintiff that the advance train stood upon the track at the station. The reply to this is that his duty in the management of his train was the same a,s it would have been if he had had actual knowledge. Rule 73 told him that he must act “upon the supposition that another train will be met, or that the main track will be occupied.” Enright v. Railway Co., 93 Mich. 409. 5. It is claimed that the part of rule 134 above quoted required plaintiff to run from the east switch at Jackson Junction to Jackson within four minutes, — that is, that the time must not exceed four minutes, — and that this would require a speed of from 22 to 25 miles per hour. This rule must be construed in connection with the other — 525 — rules, and, when all are considered, it is apparent that this is not a rule intended to hasten the movement of trains, but rather to delay them at this point, where there are many tracks, and many trains going and coming over the various divisions of the road. It is intended as a minimum limit of time, and leaves engineers to exercise their own judgment above it under the other rules. Under this record, the court should have directed a verdict for the defendant. Judgment reversed, and new trial ordered. The other Justices concurred.