Greenfield v. Detroit & Mackinac Railway Co.

Grant, J. (after stating the facts). The important question in the case is the first one. 1. The defendant had verbally instructed the conductors of its log trains to carry no passengers thereon without a permit, and the court so instructed the jury. The contention of the defendant is that plaintiff had knowledge of this instruction, and knew he had no right to ride upon this train as a passenger. The contention of the plaintiff is that he did not know it. It is true that plaintiff at one time knew permits were required, for 'he admits that he obtained at least 30. He, however, testified that he did not know that imperative instructions were issued to that effect; that he frequently rode without permits, and had so ridden when defendant’s train-master was aboard, sometimes paying his fare in money, and again by mileage; that others did so, and that he had not obtained a permit for a year and a half before the accident; that he had never been refused passage by any conductor; and that he entered the caboose, intending to pay his fare. There was also evidence from other witnesses that it was customary for persons to ride on these trains without permits, upon payment of fares. The fares and mileage collected were reported to the company. There is no doubt as to the law. Railroad companies may prohibit the carriage of passengers upon their freight , trains, or prescribe the conditions upon which they may ride thereon. Thomas v. Railway Co., 72 Mich. 355 (40 N. W. 463); Randall v. Railway Co., 113 Mich. 115 (71 N. W. 450, 38 L. R. A. 666). [561] Plaintiff could not become a passenger by making an arrangement with the conductor to permit him to ride, contrary to a rule of the company known to both. McVeety v. Railway Co., 45 Minn. 268 (47 N. W. 809, 11 L. R. A. 174, 22 Am. St. Rep. 728). The theory upon which this case was submitted to the jury was that the defendant had waived this rule, and that plaintiff was justified in so believing. That railroad companies may, through a long-continued, open, and notorious disregard of their rules by their employés, waive their enforcement, is well established. The instructions of the court upon this question were full and explicit, and it is not necessary to quote them. Counsel do not criticise them, their sole claim being that there was no evidence upon which to base such instructions. We think the question was properly submitted to the jury. 2. The conductor of the train was killed in the same accident. For the purpose of laying the foundation for objecting to testimony as to facts equally within the knowledge of plaintiff and the conductor, the defendant’s attorney upon the trial asked the plaintiff’s attorney to admit that the conductor was killed, to which plaintiff’s attorney replied: “There is no question about that, and it is a fact that the railroad company settled with the widow after-wards for it. ” Defendant’s counsel excepted to the remark, and the judge immediately stated that it was improper, ought not to have been made, and must not be considered by the jury. Defendant’s counsel urge this as reversible error. If the presiding j udge had not promptly and emphatically censured the plaintiff’s attorney for making the remark, and told the jury that they must not consider it, it would have been error, within many decisions of this court. Such remarks are designed to prejudice the jury, else they would not be made. My Brethren are of the opinion that, under the circumstances, the case should not be reversed for this error, and I reluctantly assent to their opinion. 3. Defendant’s counsel insist that the evidence conclu [562] sively establishes the fact that the logs were properly loaded. Experienced lumbermen, and other experienced persons in transporting logs by cars, witnesses for the ■defendant, testified that there were two methods of loading cars, — one with the use of chains, and the other without chains; that there is no difference between the two in respect to safety; and that the main object in using chains is to carry larger loads. The chains are bound over the top of the logs, and then other logs are placed loose on top of them to bind the load. They also testified that logs, when properly loaded, sometimes fell off. One of the defendant’s witnesses testified that, “if loaded properly, they should be chained. “ Q. Are chains always used ? “A. No, sir. “ Q. What other way is there for loading properly ? “A. Well, they put in stakes of proper lengths, and proper kind of wood; and then', of course, in loading with stakes, without chains, they could not be loaded so heavy. “ Q. What is the purpose of using chains ? “A. Well, to put on a bigger load.” Defendant also introduced evidence that, at the time of the trial, chains were no longer used. The hemlock logs upon this train — at least, those on the car immediately in front of the caboose — were peeled. It is manifest that, in case of a sudden jar upon stopping or starting the train, they would slip more readily than when chained, and more readily than would logs with bark on them. In view of this fact, and the testimony above quoted, we are not prepared to hold, as an undisputed fact, that these logs were properly loaded. 4. There was testimony introduced by plaintiff tending to show that a piece of the flange, about 19 inches in length, was broken out of one of the wheels under the caboose, and that there was an old crack in the outer rim at the place .where the break occurred. One of the witnesses, who examined the wheels about 12 hours after the accident, testified: [563] “I noticed one wheel that was broken. It was nearest to the switch towards Onaway. It had the appearance of being the first one that went off. It came off the rear end of the way-car. The flange to it was broken off. There was about 19 inches broken off. ‘ ‘ Q. State how it was broken, and, after it was broken, how it left that part of the wheel. “A. Well, on the flange it had about three-quarters of an inch of rust on it; looked like an old crack; and it ' struck something and knocked the rest of it. “ Q. After it was broken off the wheel, how did it leave ihe wheel itself? “A. Left the wheel so it had no flange to hold it on the rail for 19 inches. “ Q. You examined the wheel, did you? “A. Yes, sir. “ Q. Could you find the flange ? “A. No; we looked for it, but couldn’t find it. “ Q- As it was broken off on the wheel, how was the break ? State how it looked. “A. Well, it looked as though it was a crack in it, and it got rusted by the weather, or something made it rusted three-quarters of an inch deep. * * * The rest of the break was bright.” The court instructed the jury that if this “was an essential element in the happening of the accident, — that it would not have happened without it, — and that it could have been observed by a proper inspection, the defendant would be negligent in that regard.” We think there was ■evidence justifying the submission of this question to the jury. 5. Complaint is made of the refusal of the court to give the following instruction: “If the plaintiff was a passenger upon the defendant’s log train, and the accident which caused his injury occurred while the train in question was being operated in the usual manner in which log trains are operated upon well-managed railroads, and the train was such a train as is usually run for the purpose of carrying logs on well-managed-railroads, then plaintiff cannot recover.” As a general statement of the law, the request is sound. It is subject to criticism, in that it omits any reference to [564] the specific acts of negligence alleged and relied upon. In view of the explicit instructions of the court upon the subject of the defendant’s negligence, we think the refusal tO' give this request not prejudicial. The court distinctly instructed the jury that if the logs were properly loaded, or if they were liable to fall off when so loaded, plaintiff' could not recover. There was no question about the-equipment of the train or the method of operating it. Tim sole acts of negligence charged were the two, and to these alone the jury were specifically directed. Judgment affirmed. The other Justices concurred.