Whitcomb v. Detroit Electric Railway

Grant, J. (after stating the facts). 1. The car was properly equipped with the best appliances. It was in good condition when operated by the plaintiff on the day before, and when he returned it to the barn. It was in good condition when plaintiff’s fellow-servant, the next conductor, took it, ran it the usual time, and returned it. Plaintiff received it at 5:50, and discovered no defect in it until the trolley pole left the wire at the crossing of another track at Mack avenue. In plaintiff’s judgment, it was not then in a dangerous condition, and he ran it for about 10 miles farther, safely and without much difficulty. The defendant had performed its duty in providing a well-equipped car. No showing is made that the system of inspection is insufficient, nor is it claimed that competent inspectors were not provided. The theory of the declaration is that this trolley pole was injured in the barn of defendant between 1 o’clock and 5:50. The sole testimony which the learned counsel claims tends to support this theory is that the trolley pole, after having run a mile, left the wire, and was then found to be bent. To sustain this theory, it should appear that the pole was not bent at the time it left the wire, or while running from the barn to the place where the defect was first discovered. The bending of trolley poles is caused by the poles’ leaving the wire, and then catching in some obstruction. It is thus described by one of the witnesses: “ It sometimes twists in the socket if these bolts are not clamped very tight, because it pulls straight on it. The twist bends are usually made on straight tracks, but on a [575] curve the trolley is more apt to be pulled from the base than it is in a straight wire. When a trolley wheel slips from the wire, the pole stands up vertical, and then, if it comes in contact with a span wire, it gets a bend or twist, .and the faster the speed the worse the bend.” Under all the testimony, this could have been done at the very time the defect was discovered. There is nothing in the record to justify the inference that it was done while in the barn. If, therefore, a verdict were permitted, it would rest upon pure speculation. The mere fact that the pole was found bent after it left the wire is no evidence that the injury to the pole occurred in the barn. The natural inference is that it bent at the time it left the wire. It follows that no negligence of the defendant was shown. 2. The main contention on behalf of the plaintiff now is -that the defendant failed to properly inspect the car before it left the barn. ' The failure to inspect is not declared upon, and therefore cannot be any ground for recovery. The pleadings are not such as to justify a consideration of this matter. We therefore express no opinion upon the question of whether plaintiff and the inspectors were fellow-servants. 3. It is unnecessary to determine the question of contributory negligence of the plaintiff in standing upon the top of the car and attempting to hold the trolley pole against the wire. It is not claimed that there is any rule of the company to require its conductors to engage in an operation so extremely dangerous. The sole claim upon which plaintiff attempts to avoid his contributory negligence in such a dangerous undertaking is that the custom of conductors to do so was so frequent and notorious as to fasten upon the defendant its sanction of such method, and a liability if an accident follows. The testimony on the part of the defendant, and also on the part of some of the witnesses for the plaintiff, is that the usual and safe way is for the following car to push the disabled car to the barn. It is manifest that the plaintiff was thrown when the car made the curve, and that the pole was torn [576] from its socket at that time, and he fell, taking the pole with him. One of plaintiff’s witnesses, who saw the accident, testified that “just as he struck the curve he seemed to be pitched to the ground, and came down with the pole. When the front wheel struck the curve, the car got a little jerk, and he came down off the top.” The turning of the car naturally tended to throw the plaintiff. The force with which he was thrown would depend hpon the speed of the car. The sudden jolt given a car when it reaches a curve is common knowledge. A rule requiring such conduct would shock the common sense of the average man. The evidence must be very clear which would make the defendant responsible for such a dangerous method. If conductors are in the habit of so doing, a rule against it would be very proper for such companies to adopt. The judgment is affirmed. The other Justices concurred.