Mayer v. Detroit, Ypsilanti, Ann Arbor & Jackson Railway

Grant, J. (after stating the facts). In the briefs and oral arguments it was asserted by plaintiff’s counsel— and denied by defendant’s counsel — that there was not a pail of sand or a shovel provided on plaintiff’s car with which he could throw sand upon the track in case of emergency. Under this record the question is wholly immaterial. ■ No such ground of negligence is alleged in the declaration. The duty of the defendant alleged in the declaration was to ‘ ‘ equip and supply its said car with — 466 — sand boxes and sand.” It is apparent that the case was tried solely upon this theory, so far as the use of sand is concerned. Neither the plaintiff nor any other witness testified that his car was not supplied with a pail of sand and a shovel. The other motormen testified that on their cars they had pails of sand. Plaintiff testified that his car was equipped substantially the same as others. The argument of the attorney for plaintiff before the jury, as printed in the record, is evidently based upon the failure to provide sand boxes and sand, which could be used automatically, and not a failure to provide a pail of sand to be used by hand. The inquiry made by the plaintiff of the superintendent in the morning, before he commenced his day’s work, whether the cars should not be equipped with sand boxes and sand, was not made with reference to the slippery condition of the track which developed at noon. It was made with a view to equipping the cars with this automatic arrangement for use on all occasions when necessary. There was evidence that the president of the street railway employés’ union .had requested Mr. Merrill, the manager of the road, to place sand boxes on the cars, and that Mr. Merrill said he did not think it was necessary; also that the superintendent of the road in Ann Arbor told plaintiff, on the morning in question, that he did not think it was necessary. There is evidence of but one other runaway, on account of the slippery condition of the track, on this road during the several years of its existence, and that happened several years before the plaintiff’s accident. Evidence of this came from one Mullison, a motorman, who had been in the employ of the company for six years as motorman and conductor. Whether this runaway of Mullison’s commenced upon Detroit street, or whether it commenced on the steep grade from Detroit street to the depot, the record fails to show. From the fact that the result was not very serious, it might be inferred that Mullison lost control of his car as it commenced to go down the steep grade by the depot. De — 467 — fendant asserts in its brief that this was so, and that there never had been an accident of any kind on Detroit street. But, as already stated, the record does not show what the fact is, and the onus probandi is upon the plaintiff. If other runaways had occurred going down this hill, under like circumstances and for the same cause, it would not only be competent, but very important, evidence; for this would have been notice to the defendant that it should have made all reasonable efforts to avoid a danger imperiling the lives and limbs of its employes and passengers. Counsel for plaintiff, however, insist that they were prevented by the ruling of the court from showing other similar occurrences. Counsel’s basis for this claim is found in the exclusion of thp following question, propounded to the depot master, one of plaintiff’s witnesses: “ How many cars do you know of having run away and run down that hill before this,- since you have been there — getting away and running down that hill, and Tunning into that depot or something there ? ” This was objected to as incompetent, and the objection sustained. No attempt was made to show, by Mr. Mullison or any other employe of the road, similar runaways. Mr. Mullison’s testimony was admitted without objection. Its competency is too clear to admit of doubt, if that runaway occurred on Detroit street. There was no attempt to show that the depot master knew anything about the cause or circumstance of any other runaways, if there were any, nor whether they occurred in running down the very steep grade from Detroit street to the depot, or whether they started above on the street. This question furnishes no basis for an argument that plaintiff was prevented from showing other similar runaways for similar causes upon the same portion of the road. Having disposed of these preliminary questions, we now •come to the first main question, viz.: Was there evidence that the defendant was negligent in failing to provide its cars with sand boxes and sand, for use so that they could — 468 — be used automatically when occasion required ? There is no evidence that, during the several years in which defendant had operated its road in the city of Ann Arbor, any such runaway had occurred down Detroit street, or that there had been any difficulty in controlling the cars thereon. So far, therefore, as this record shows, there had been no difficulty in controlling the cars with, the appliances which the defendant had furnished. It was customary, evidently, for them to use sand, when deemed necessary, with a shovel. This was more inconvenient, and undoubtedly involved more labor; but the record fails to show that its use in this manner was insufficient to avoid accident. Whether the president of the union requested the manager to equip the cars with sand boxes to work automatically, because they were more convenient and labor-saving, or whether because it was safer, does not appear. Defendant’s cars were small and light. There is no evidence that similar cars on other roads were equipped with sand boxes, except that in the city of Detroit two small cars were thus equipped. These were the only two in use in that city; the others being the large cars. Defendant’s counsel assert that the ordinance of the city of Detroit requires all its cars to be supplied with sand boxes and sand. We find no evidence of the ordinance upon the record. This witness (the president of the union ) was then asked: “ State whether or not, at the time of this accident, good railroading demands that these cars should have sand boxes and sand supplied upon the cars ? “A. I believe they would have been safer. “ Q. Would it have been good railroading to have done it? “A. I believe it would have been good railroading to have done it; yes.” On cross-examination he gave his definition of the meaning of good railroading as follows: “ What I mean by good railroading is that everything should be done possible in equipping a car to insure safety.” — 469 — This is not the rule, and renders this witness’ opinion valueless, and his testimony should have been stricken out. Ordinary care is the rule applicable to this case. 4 Thompson on Negligence, §§ 3768, 3769; Lamotte v. Boyce, 105 Mich. 545. The means furnished must be those which, “measured by the standard of good railroading as actually conducted, can be said to be reasonably safe.” Balhoff v. Railroad Co., 106 Mich. 606; see, also, Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537. It does not appear by this record that experience had shown that sand boxes were essential for safety in running defendant’s cars. Neither is it shown that it is the custom of other roads similarly situated and running similar cars. It follows that there was no negligence shown in the failure to supply its cars with these appliances. A new trial, if one be had, may show a different state of facts. We now determine the question only upon the record before us. 2. I think it was error for the circuit judge to say to the jury that— “He [plaintiff] was only a motorman without other training or experience or knowledge than what was merely sufficient to start and run and to stop the car, and he possessed no mechanical or other scientific knowledge or training, but was an inexperienced young man recently from the country.” I find nothing upon this record to indicate that plaintiff was not instructed in the usual manner and for the usual time considered necessary to enable motormen to run one of these cars alone. It is not a difficult thing to do. It was not necessary, neither was it expected, that he should understand all the mechanism of the car. No scientific knowledge was required. When he had been instructed and had learned how to control such mechanism by the use of the lever and the brakes he had acquired all that is essential. If anything happened to disable his car, the rules required him to have the next car. take it back to the barn for repairs. He is not, as is a railway engineer,, re — 470 — quired to understand the mechanism of the machine. and be able to repair it. That duty was very wisely left to others, educated for that purpose. The plaintiff had been employed as motorman of defendant’s road for six months prior to the accident. No complaint is made that competent men did not instruct him, or that they did not instruct him for a sufficient length of time. He understood all the moves necessary to be made in order to start and control the car around curves, descending inclines, and at all other danger points. All of his instructors considered him competent. After a week’s instruction he acted as motorman on defendant’s cars in Ann Arbor until the 1st of November following. He was then placed under instruction for two weeks upon the main line between Ann Arbor and Detriot, engaged in running heavy cars, after which he returned to run the small and light cars in the city of Ann Arbor. His instruction was both by example and precept. He was familiar with sand boxes and sand. He used them on the main line; had run the cars for nearly six months without them in the city of Ann Arbor. He knew for what purpose the sand was used; he knew its effect as well as any one; he knew the danger of its absence as well as any one; and if he had it upon the car, and failed to use it when he saw the slippery condition of the track, he should be held to have assumed the risk. But for some assurance by the superintendent that the use of sand was unnecessary, plaintiff would clearly have assumed the risk. The assurance upon which he says he relies he states as follows: “I asked him the question whether he did not think there would be; or ought to be, sand and sand boxes upon those cars, and he said, ‘ No;’ that it was not the car, it was the man, who was to blame. He said he could take a car down there at any time, and go down there safely, and so could any other man who would go down there carefully.” Every motorman, so far as appears from this record, had taken his car down Detroit street in safety. If this — 471 — were so, the superintendent was justified in his statement. But the assurance was not that the úse of sand in any manner was not necessary. It was only that sand boxes, constructed so as to feed sand automatically, were not necessary.' Judgment must be reversed, and new trial ordered. Carpenter, J., concurred with Grant, J. Moore, C. J. I agree with Justice Grant that the case should be reversed, but think there was evidence tending to show the defendant Was negligent in not equipping its cars with automatic sand boxes. ' Montgomery and Hooker, JJ., concurred with Moore, C. J.