Graham v. Detroit, Grand Haven & Milwaukee Railway Co.

Ostrander, J. (after stating the facts). Counsel for plaintiff say in the brief: “The subsidiary proposition, whether the station agent at Corunna was a fellow-servant with Graham, is not of the slightest importance on this record, and will not be discussed by us. The reason for so saying is that if the plaintiff made a case to go to the jury on the question whether the message * * * was in fact sent and addressed to the conductor and engineer, then the finding of the jury in that respect is conclusive, because no question can arise of Humphrey’s negligence in failing to properly deliver something which he did not receive. Upon the other hand if (1) plaintiff did not make a case to go to the jury on whether the message was in fact sent, or if (2) the finding of the jury that the message was not sent was against the weight of the evidence, then this court will, and ought to, reverse the judgment without reference to the question whether Humphrey and Graham were fellow-servants or not. In either event, whether the message was sent, or was not sent, the question [635] whether the Corunna station agent and Graham were fellow-servants has absolutely no significance on this record.” But counsel do insist that the duty resting upon defendant to notify either plaintiff’s intestate or the train men of the known condition of the road was a positive and absolute duty. The testimony upon the subject of delivery of the message to the train men is conflicting. That a message containing the information indicated was sent to Corunna, and that the train was stopped at Corunna, by signal, and was cleared, or released without receiving orders, is undisputed. "Whether the message, to deliver which was the reason for stopping the train, was addressed to the engineer and conductor of the train, is the precise question debated by counsel. Plaintiff claims that whatever message was sent was addressed to Bishop and delivered to Bishop and remained in his hands. Defendant claims that it was addressed as the copy produced indicates, and that though it was handed to Bishop it was by Bishop given to the engineer and read by him, and that the conductor was told by the station agent that the engineer had a message concerning washouts. As all of the direct testimony introduced upon the subject of the sending of the message properly addressed and the receiving of it at Corunna supports a conclusion favorable to the defendant, a finding that the message was not sent must rest entirely upon inference. With the aid of counsel, we have examined the record, which is certified as containing the substance of all the testimony, for the purpose of discovering, if we can, in support of the finding of the jury, testimony from which the inference may be drawn. We do not find it in the fact, if it is a fact, that the message was not delivered by the station agent to the engineer and conductor, in the fact that the original of the message has been lost or destroyed, in the fact that the station agent, Humphrey, is disputed upon material points, in the fact that the fireman is disputed, or even discredited, as a witness, in the fact that other of defendant’s witnesses are disputed, in [636] the fact that the message contained information of the condition of the road beyond the point expected to be reached by the train during the work of the day and to which a working train order had been given. In view of the positive and undisputed testimony of the making up, addressing, and sending of the message, we cannot find it in the fact that Bishop was not produced as a witness at the trial. The testimony relied upon in support of the finding is not inconsistent with the testimony regarding its form and its transmission. The principal argument advanced for plaintiff in support of her contention is that the jury were warranted in disregarding the testimony introduced by defendant tending to prove that the message was delivered. The argument is unsound. Whether the message was sent and whether it was delivered are separate and distinct questions. Circumstances which justified the finding that the message was not delivered to the train men did not justify a finding that it was not sent by the train dispatcher. We have, therefore, after a careful examination of the record, reached the conclusion that the finding of the jury that the message in question was not sent is unsupported by evidence. This requires us to reverse the judgment and to order a new trial, for the reason that the jury should have, been instructed that if they found that the train dispatcher at Durand made proper effort to acquaint the train men with known conditions of unsafety, defendant had performed its duty in the premises. There is considerable testimony tending to prove that less care is generally observed to insure the delivery of messages than is used to insure delivery of train orders. Evidence of delivery of train orders is secured at the central or directing office before trains are cleared. Such orders are, in effect, receipted for by the train men or by the conductor of the train. Defendant was bound to use a degree of care commensurate with the importance of the communication and the purpose for sending it, not only in transmitting the message but in securing its delivery to the proper persons. But we are not prepared to hold that in [637] performing that duty it had not the right to rely, reasonably, upon its servants, agents, and means of communication, or to use other means of communication if its own were defective. We are referred to no case, and have found none, precisely in point. The case of Mercantile Trust Co. v. Railway Co., 115 Fed. 475, 53 C. C. A. 207, is in some respects similar. But in that case the train dispatcher who possessed the information did not act, the train men who were entitled to notice were in the regular service of moving one of the defendant’s trains, the danger was caused by an extraordinary storm. The facts brought the case, in the opinion of the court, within that class of cases where the duty of informing the servant of special or extraordinary risks connected with his service is held to be a primary duty of the master. In the case at bar, the service was the repair of the road injured or destroyed by a storm which had not yet spent its force. The nature of the service was known to every one on the train. These facts serve to distinguish the cases. The duty of the master to minimize'danger by giving notice of the places where defects existed has been stated. If in performing this duty, by the use of means adequate to impart the knowledge to the proper persons, in proper season, the purpose was defeated by negligence of the station agent, which due care on the part of the master would not have prevented or discovered, defendant is not responsible for the consequences. We intimated this principle in Moon v. Railroad Co., 143 Mich. 125, 135. It requires a high degree of care but does not extend so far as to impose a positive and wholly non-delegable duty upon the master. The judgment is reversed, and a new trial granted. Blair and McAlvay, JJ., concurred. Carpenter, J. I agree with Justice Ostrander that if “the train dispatcher at Durand made proper effort to acquaint the train men with the known conditions of unsafety, defendant had performed its duty in the premises.” [638] I agree with him that the undisputed testimony proves that said train dispatcher did undertake to acquaint the train men with such known conditions of unsafety by telegraphing the conductor and engineer of said train at Corunna. I think by sending this telegram the train dispatcher adopted the obviously proper method of acquainting the train men with those conditions. It was a method, too, which would have been entirely sufficient had not the station agent at Corunna failed to perform his duty. The train dispatcher had a right to assume, and to act upon that assumption, that there would be no failure to perform that duty. Under these circumstances I can perceive no sound reason for saying that something else should have been done, or that what was done should have been done in any different manner. I am of the opinion, therefore, — and here is where I go further than does my Brother Ostrander, — that we should say, under the circumstances disclosed by the record, that in sending the telegram to Corunna, the train dispatcher performed his entire duty — and the entire duty of defendant toward plaintiff’s intestate. It follows that in my judgment defendant was entitled to a directed verdict. I agree with Justice Ostrander that the judgment should be reversed and a new trial granted. Grant, C. J., concurred.