Breeze v. MacKinnon Manufacturing Co.

Hooker, J. The defendant MacKinnon Manufacturing Company set plaintiff’s husband at work upon a boiler which lay across the end of a railroad switch in its yard, upon which switching was done daily. It was obvious to •the plaintiff’s intestate that there was danger from the backing in of cars, and he talked to his co-laborer about it. He knew of and understood the danger as well as the defendants did, and chose to accept the situation. Under such circumstances the employer cannot be held liable upon the ground merely of a failure to furnish a safe place to work. The case is within the rule of Middaugh v. Mitchell, 120 Mich. 581. It is not reasonable to suppose that the parties contemplated that the employer would change the usual habit of business in the yard, or that the employer would, either personally or through agents employed for the purpose, keep watch of the trains, and give warning to the plaintiff of their approach. Such a claim 'is so at variance with the common experience as to make it untenable. There is no proof in the case from which it ■can be inferred. Again, at the time he was hurt the plaintiff’s intestate was not at work upon the boiler, but was passing between it and a car three or four feet away. Be-' ing struck by a switch train, this car struck him down, just as it would have done, had' not the boiler been there, ■or had he not intended to resume work upon it. It is said that the MacKinnon Bros, are responsible for the negligence of the railroad company. This is upon the ground that they were its agents, because switching cars in its yard. This claim cannot be sustained. The MacKinnon Company had no supervision or control of the rrailroad company or its men. The company was an independent contractor, responsible for its own negligence. .1 Thompson on Negligence, §§ 621, 646. [374] W e see no escape from the conclusion that the MacKinnon Company is not justly chargeable with any fault, unless it be that the work should not have been done upon the track, and of that the intestate was aware as well as it, and, by not declining to do it there, he accepted the situation and the danger. A verdict of not guilty should have been directed as to the MacKinnon Company. With the railroad company the question is different. There is testimony in the case tending to show that the trainmen knew that this work was going on, and that they gave no signal of the approach of the train, and used no care to prevent the collision between the stationary car and the boiler. There was therefore a question of fact as to their negligence. There was no assumption of risk of the railroad’s negligence as between plaintiff and the railroad company, as there was between him and his employers. The question of contributory negligence is one which was for the jury. There was proof from which it might have been found, but it was not conclusively shown, for the situation was one which was not free from dispute, and minds might well differ as to the degree of care which it demanded. The judgment should be reversed as to the MacKinnon Company, and affirmed against the railroad company. Carpenter, McAlvay, Blair, and Montgomery, JJ., concurred. Moore, C. J. From a judgment in favor of plaintiff, each of the defendants has appealed. Each states that the only error relied upon is the failure of the judge to direct a verdict in its favor. Counsel for the railroad company say in their brief: “Under all the circumstances, if judgment cannot be entered for defendant the Michigan Central Railroad Company, or both defendants, we ask that the judgment of the lower court be affirmed, as we do not wish a reversal and another trial in the circuit court.” [375] Counsel for the other defendant take the same position in relation to that company. William Breeze was in the employ of the MacKinnon Manufacturing Company, who are machinists and boiler makers; having a large plant on Water street, in Bay City. Defendant railroad company has a track on this street, which runs north and south, and a spur about 100 feet long extends from this track south upon the property of the MacKinnon Company, and, after making the connecting curve, runs almost parallel with the track on Water street. This spur is used by the MacKinnon Company exclusively in its business. This spur runs between the main track and the buildings of the MacKinnon Company. In the latter part of April, 1903, the MacKinnon Company received an old boiler to be cut up for scrap, and unloaded it lengthwise on this spur track, and about 15 feet north from the bumping post. The deceased was on May 5th set at work cutting upon this boiler, and worked a few hours on six different days; working a total of 20-2 hours prior to May láth. On that day he had worked 3 hours, and, just before the accident in which he received injuries which resulted in his death, went to the office building to get some wedges, where he was directed to go for them. On the day previous a flat car was delivered on this spur to the MacKinnon Company, and was loaded with a large new boiler, 6 feet high and 20 feet long. Deceased helped to load it. In the forenoon of the day of the accident the railroad company delivered upon this spur a car loaded with scrap iron and two old boilers. This spur passed over the sidewalk, and, to leave it clear when the second car was brought in, the car upon which the new boiler was loaded was pushed farther down the spur, and to within a few feet of where the old boiler was. Counsel for plaintiff state the situation as follows: “ This spur was then occupied as follows: First, by the old boiler, eighteen feet long, lying lengthwise of the track, about fifteen feet from the bumping post; next, the car on which the new boiler had been loaded; and, next, the [376] flat car loaded with scrap iron and two old boilers. With the cars in this position, an engine of the defendant railroad company backed onto this spur track, about 3:05 in the afternoon of May 14th, for the purpose of taking out the car on which the new boiler was loaded. “In the meantime the deceased had come out of the boiler shop with the wedges, and walked down on the east side of the spur track at the side of these cars to the old boiler. He stepped in between it and the cars just as the engine was coupling onto them to pull them out. “The cars were.struck with such force that they were driven against the front or north end of the old boiler, and deceased was caught between it and the end of the car and crushed, from which injuries he subsequently died.” It is their claim that deceased was not notified by either of the defendants of the coming of this engine, and that the proper and usual signals of its coming were not given. Both defendants claim that a verdict should have been directed in favor of both of them, first, on the ground of contributory negligence; and, second, because the accident which caused the death of Mr. Breeze was among the assumed risks of his employment. If it is true, as claimed by plaintiff, that it was only occasionally that an engine was run upon this track, and then only when directed by the MacKinnon Company, and if it is also true that this was done upon this occasion without giving any warning of the approach of the engine, then we cannot say, as a matter of law, that the doctrine of contributory negligence or that of assumed risk made a defense. As to both of these defenses a question of fact existed, which was for the jury. See 4 Thompson on Negligence, §§ 4647, 4648; Swoboda v. Ward, 40 Mich. 420. Three other defenses are urged upon the part of the railroad company: First. That there was no common duty between the railroad company and the MacKinnon Company; that, while the latter might be under obligations to furnish its employés with a safe place to work, as the deceased was [377] not an employé of the railroad company, nor employed upon its premises, it was under no duty to provide him a safe place to work. Second. It is said that the servants of the railroad company in charge of the train were for the time being the servants of the MacKinnon Company, and therefore the fellow-servants of Mr. Breeze, and even if the negligent acts of the trainmen caused the death of deceased, the plaintiff cannot recover. Third. That the relation of the railroad company to Breeze was not the same as its relation to the general public, but was similar to its duties to its own employes, and that no such negligence on the part of the railroad company has been shown as would make it liable. In relation to the defenses urged on the part of the railroad peculiar to itself, the MacKinnon Company replies that the railroad company at no time during the trial urged immunity on its behalf, in the absence of similar immunity for the MacKinnon Company. It also insists that if there was no common duty, and therefore no joint liability, it, and not the railroad company, is the one in whose favor a verdict should be directed. The MacKinnon Company also insists that what it did or failed to do was not the proximate cause of the injury, but the running of the engine at the particular time, and the making the coupling in the particular way it was made, was the proximate cause. It would profit no one to discuss these various defenses in detail. We have examined them with great care in connection with the testimony, which was in many respects contradictory. We must content ourselves with saying that, as a result of this examination, we are satisfied that we cannot enter a judgment in this court for either of the defendants. Judgment should be affirmed. Ostrander, J., concurred.