Peppett v. Michigan Central Railroad

Grant, C. J. (after stating the facts). We approve the instructions of the court in directing a verdict. The following facts are established by the evidence: 1. That the engine was properly constructed. 2. That defendant had performed its full duty as to inspection. 3. It was the duty of the decedent, both after coming in and before going out, to inspect the engine, and, after coming in, to minute in a book, kept for that purpose, any repair needed. He did make such inspection, but reported nothing wrong. The wearing, if any there was, was easily discernible; He therefore assumed the risk of such defect. [648] 4. If there was an}*- testimony tending to show that the casting^ were worn, plaintiff introduced no testimony to show that such wearing would cause a derailment. On the contrary, defendant introduced the testimony of nine competent and experienced experts that such wearing has no tendency to cause a derailment. 5. The evidence is overwhelming that the rail was not worn sufficiently to cause the derailment. The state mechanical engineer' and several others testified that the rail was safe. But more convincing than the testimony of these experts is the fact that the rail was not removed from its place, and was still in use at the time of the trial. It is, however, insisted that there was a conflict of testimony upon this point, and that the question, if it were material to the determination of the case, should have been submitted to the jury. The testimony on behalf of the defendant is as follows: One Isaac Bisbee lived near the track. On the Sunday after the wreck, he marked the rail where the wheels ran upon it with a cold-chisel on a flange of the rail. He testified that the same rail was still there 8 or 10 days before the trial, with his mark upon it. Daniel Foley, the road-master of the defendant road, testified that the rail had never been changed. Charles Belcher testified: “ That rail is still in the track, and has not been taken away. It could not have been taken away without my knowledge.” John Walters, a section man, testified that the track was not changed, and he had never known of the rail being taken out. Patrick Wall, assistant trackmaster, testified that he did not know of the rail having been changed, and that he should have known it if it had been. Elliott F. Moore, the state mechanical engineer, testified that some days after the wreck he saw the rail, which had a mark upon it, and that it was a safe rail, and in no respect dangerous. Warren B. Stimpson, superintendent of the Grand Rapids & Indiana Railroad, testified that he had seen the rail in the track which was marked by Mr. Bisbee, and that it was a fit and proper rail. The only testimony on the part of the plaintiff to [649] contradict the above testimony, and to show that the rail had been removed, is as follows: One Thomas Mapes saw the rail after the accident; saw a very slight mark across the top, and noticed that it was worn, but could not say how much, but that he considered it worn quite a good deal; that he had been along the track since, and was unable to find the mark upon it; that he was there about a week before the trial, and, in his opinion, that rail was not worn as much as the rail that was in there at the time of the wreck. On cross-examination, he testified that it was a mere matter of recollection, and, “ I do not know that it is not the same rail, but I did not see this mark on the rail, — the reason that I did not think it was. ” William Hawkins testified that he noticed the rail at the time of the accident, and also within three or four days after the accident, and that the marks had then disappeared. On cross-examination he testified: “ Q. The same rail was there three or four days after, you say ? ‘ ‘A. I didn’t use any such expression. “ Q. But didn’t notice the mark ? “A. I said I looked for the rail, but the mark was gone. “ Q. Was it the same rail? “A. If it was, they had destroyed the mark some way. I should not think it was the same rail. “ Q. You didn’t notice any differences except the mark, did you ? “A. No; the rail was not worn as bad as the one that was in there the day of the accident. ‘ ‘ Q. Are you sure of that ? “A. I looked at that particularly. ‘Q. Do you know that to be so ? “A. I could not swear to it, no; but, in my opinion, I think so.” Would a jury be justified, in any case, in finding that there was a serious conflict in the evidence, and in adopting the mere opinion or recollection of two witnesses, who made no measurements or careful examination, as against the positive testimony of six witnesses, who were unimpeached ? No court, having due regard for justice, would [650] permit a verdict to stand when rendered against such positive and convincing evidence. Property rights are too sacred to be bartered away upon such flimsy statements. Mr. Bisbee was an entirely disinterested witness, engaged in the milling business, and made the mark with the chisel because there was some discussion among the men as to the point where the wheel left the track. 6. There was no testimony, from any one competent to speak, that any or all of the alleged defects caused the derailment, or that the engine or rails were not in a safe condition, such as is justified by good railroad management. From the facts, it conclusively appears that no negligence on the part of the defendant was shown. It is not enough for the plaintiff to indicate a state of facts from which there is a possibility the accident occurred. The facts must be such as to indicate a reasonable probability that the accident occurred from the negligent acts charged. Plaintiff must' establish the probable producing cause; otherwise, her case fails. The cause of this accident is as uncertain and problematical as was the cause of the accident in Whalen v. Railroad Co., 114 Mich. 512. Plaintiff’s counsel reason thus: “Given a normal engine, runnipg upon a normal track, under normal conditions, and the engine would not leave the track. The engine did leave the track, the surrounding conditions were normal, but the engine was certainly abnormal, and w'e think the track. It is a fair deduction that the abnormal conditions caused the abnormal result.” This reasoning would be sound, provided plaintiff had shown any causal connection between the alleged fiefects and the derailment. While juries deal with probabilities, and not with certainties, they can only do so when there are facts upon which to base the probabilities. Many accidents happen for which there is no reasonable explanation. In such cases, juries cannot be turned loose in the field of speculation. Employés assume the risk of all such accidents. [651] After plaintiff had rested, and defendant had occupied two days in putting in its testimony, plaintiff’s counsel asked permission to reopen her case and introduce one expert witness. The most of the expert .witnesses on the part of the defendant had been discharged and returned home, some of them at considerable distances. The testimony was not in rebuttal, but was part of plaintiff’s main case. Her counsel recognized this, and offered the opinions of some witnesses as to the effects of the condition of the rail and the worn castings. They were not shown to have sufficient knowledge and experience to testify, and their testimony was excluded. Of this .ruling no complaint is made. The circuit judge refused to admit the testimony. This is alleged as error, on the ground that the ruling was an abuse of discretion. We cannot concur in this view. We think the circuit judge was right in so ruling. Judgment affirmed. Hooker and Long, JJ., concurred with Grant, C. J. Moore, J., concurred in the result.