Hamilton v. Michigan Central Railroad

Hooker, C. J. The defendant’s passenger train left the track near Monroe, Mich., resulting in a bad wreck, and injuring one or more of its passengers, one of whom recovered a verdict, and the cáse was reviewed by this court. The outline of the circumstances can be found in the opinion filed in that case. See Whipple v. Michigan Cent. R. Co., 130 Mich. 460 (90 N. W. 287). The plaintiff in the present case was the engineer of the train, and he recovered a substantial verdict and judgment, from which both parties have appealed; defendant’s counsel contending that the court erred in refusing to direct a verdict for the defendant, while plaintiff’s counsel allege some errors relating to the question of damages. The theory of the plaintiff is that the' rails spread, either because the ties were rotten and would not hold spikes, or because the sectionmen had failed to spike the rail properly. As an answer to this, the defendant insists that the evidence conclusively shows that the rails did not spread, and that it is conclusively shown that the wreck was caused by the intentional act of trespassers, who drew [97] the spikes fastening down the rail a few minutes before the accident occurred. It is also said by defendant’s counsel that, “according to the theory of the plaintiff, the injury was due to the negligence of the inspectors of the track; that they were fellow-servants of the plaintiff, and no negligence is alleged or shown on the part of the defendant in respect to these inspectors.” The present record is radically different from the former in some particulars, and it required the submission of all the questions of fact mentioned to the jury, unless it be the failure to spike the rails. We think that it does not conclusively appear that the track did not spread, and we are also of the opinion that it was not conclusively shown that the accident was due to the acts of trespassers. There is little evidence, if any, tending to show that the defendant’s sectionmen had failed to spike the rails, but the case did not go to the jury upon such a theory, and it need not be further considered. It was plaintiff’s claim that the defendant neglected to maintain a safe track, not that the accident was due to a failure to inspect; and, if it were otherwise, the inspector of the roadbed would not be considered the fellow-servant of an engineer in regard to the performance of such a duty, any more than he would be in repairing the road; and we have held that sectionmen are not in fellow service with trainmen in caring for and repairing the roadbed. It was the duty of the master to be diligent in maintaining the track. Tangney v. J. B. Wilson & Co., 87 Mich. 455 (49 N. W. 666); Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592); Anderson v. Railroad Co., 107 Mich. 591 (65 N. W. 585). We think, also, that the court would not have been justified in saying that the risk was assumed by the plaintiff. It follows that the court did not err in refusing to direct a verdict. The jury having found a verdict for the plaintiff, it is evident that .the refusal of the trial judge to admit a plaster cast of a dent in the rails, though erroneous, resulted [98] in no injury, and therefore would not justify a reversal of the case. It has' no bearing on the amount of damages. If counsel were not permitted to show plaintiff’s earning power, any error in the exclusion of the testimony was eliminated by the concession of the defendant’s counsel that he had been able to work every day up to the time of the accident. Counsel sought to show an expectancy of life beyond that given in the mortality table, by experts who were to testify to their opinions, taking as a basis the mortality tables, and the hypothesis that the plaintiff resembled his father and grandfather, who lived to advanced ages. We think this testimony was properly excluded. Without passing upon the question of whether the longevity of the father and grandfather was competent evidence, we are agreed that when coupled with the proposition to show by experts the expectancy of life, based upon that testimony and the mortality tables, it was not competent. A new trial should not be ordered on the other grounds alleged. The judgment is affirmed. Moore, Carpenter, and Montgomery, JJ., concurred with Hooker, C. J.