Jones v. Pere Marquette Railroad

Ostrander, C. J. The plaintiff, formerly a railroad engineer on the defendant’s railroad, was injured in a collision between his engine and a passenger train known as No. 8, running between Grand Rapids and Chicago. The collision occurred in defendant’s yard near Grand Rapids, known as “Wyoming yard.” Defendant’s track was a double main track, running southerly from Godfrey avenue or thereabouts at Grand Rapids through Wyoming yard to a point where the Lake Shore road crosses defend — 3 — ant’s road. Beyond that it was a single track. A double-track main also existed on the Detroit branch, extending from Oakland to or near Oakland avenue, where it connected with the Chicago line. A Y extended from the Detroit line to a switching station, known as “Sunny Side,” upon the Chicago line, over which freight trains on or for the eastern branch go to and from the Wyoming yard, which was located a mile or so southwest of Sunny Side. A half a mile or more southwest from Sunny Side, and at the north entrance of Wyoming yard, was another switchman’s station, known as “ Plaster Creek.” Wyoming yard extended a mile south of Plaster Creek, and a short distance south of the south entrance to the yard, perhaps a quarter of a mile or more, was the Lake Shore crossing. At each end of the yard, and also at Sunny Side, was a cross-over, used for engines and trains to cross from one main to the other. The rule of the road was to use the right-hand main. All trains going south were expected to take the westerly track and north-bound trains the easterly track. On the night of the collision plaintiff approached -Sunny Side from the east about 11:35 p. m., and this was five minutes after the regular time for No. 8 to leave Grand Rapids for Chicago, which he knew, and he also knew that No. 8 had the right of way over Ms train. He accordingly inquired of the switch tender where No. 8 was, or if it had gone, or made some other similar inquiry, and was informed that No. 8 was not going over this road that night, but was going to detour over the Grand Rapids & Indiana and Michigan Central, owing to a washout at Saugatuck, some 40 or more miles southwest of Grand Rapids. He accordingly proceeded. The switch was thrown, and he entered upon the northbound main, protected in crossing from both ways by the target, which, when thrown, showed to all trains on the main line that such mains were blocked. Knowing that they were upon the time of No. 8, and having no written order in relation to No. 8, his train, after crossing the north-bound main to the south — 4 — bound main, proceeded south with due caution; i. e., the conductor stood on the rear platform with the proper lights and fuses, as required by rule 99, ready to use the same upon the appearance of any train following. Plaintiff proceeded down to Plaster Creek, expecting to then take a switch at the north end of Wyoming yard. The Plaster Creek switchman stopped him, and gave him information that the yardmaster directed that he go south through the yard and back in on a switch, and this he did, and the switchman testified that he watched his rear lights all the way down, and saw that he backed in “clear.” While he was executing this maneuver — i. e., backing in — the target at the south end was thrown by his brakeman or the yardmaster, thus protecting him against trains from both directions, as it indicated that the mains were blocked. His train being safely on the switch, it remained for him to take his engine to the roundhouse. He therefore backed out onto the southbound main, and, had he followed the rule to use the right main, would have run south about three car lengths to the cross-over, and gone over that to the north-bound main, which the yardmaster expected him to do, as he said he would set the target on that main against any train from the west. Instead of doing so, after getting clear of the switch, plaintiff started north on the southbound main. His conductor had left the rear of the train and started to walk up to the Wyoming office, situated about midway of the yard, taking the south-bound main to avoid the danger of being run down by any engine or train from the south, upon the assumption that only south-bound engines or trains would be on that track. He had a narrow escape from being run down by plaintiff’s engine. Meantime No. 8 had received no order to detour, but, instead, a clearance order over defendant’s own road, and, although plaintiff saw the headlight coming, he supposed it was a dummy that made regular trips to Wyoming station, and kept on. This resulted in a collision, in which both engines were wrecked, plaintiff — 5 — was injured, his fireman killed, and one or more of the crew of the passenger engine and several passengers were injured. An inquest was held over the remains of plaintiff’s fireman, and plaintiff was a witness, and stated one or more times, in describing how the accident occurred, that he was on the wrong main, and was run into by No. 8, which he had supposed was going to detour. After-wards plaintiff brought this action and recovered a verdict and judgment for $15,000 for his injuries, and the defendant has appealed. If the foregoing statement were all there is to this case, it would seem that, not only was the plaintiff guilty of contributory negligence, but that there would be more reason for his being before the court as a defendant than plaintiff at the suit of all of the injured members of the two train crews and ■ passengers, if he was fortunate enough, as he seems to have been, to avoid a charge of manslaughter, as it clearly appears that he deliberately violated the written rule of the company in proceeding north with his engine on a south-bound main, knowing both the rule and the fact that he was on the time of No. 8 south bound, which he knew was, as the sequel proved, a most hazardous thing to do under ordinary, or for that matter unusual, circumstances, against which the rule was plainly designed to provide and protect, and for which violation he was liable to a fine of $25 and three months’ imprisonment under the general laws of this State, “and any conductor, engineer, servant, or other employe of any such railroad corporation, who shall knowingly violate any of the printed or written rules or regulations of such company, shall be subject to a fine of not less than twenty-five dollars nor more than one hundred dollars, or to an imprisonment in the county jail not more than three months, or both such fine and imprisonment, in the discretion of the court” (2 Comp. Laws, § 6286), of which he was advised by the book of rules in his possession. The excuse made for his misconduct was his own convenience in avoiding the delay of — 6 — having a few switches thrown and the alleged custom of disobeying or disregarding the rule that all trains should use the right-hand main, together with his belief that No. 8 would detour, upon which belief the rules clearly forbade his relying without taking the precautions provided and required by rules and bulletins. The negligence alleged and relied on is that the train dispatcher, after informing the yardmaster that No. 8 would detour, sent the train out from Grand Rapids some 85 or more minutes later without first notifying.the yard office of his intention to do so. The plaintiff could not have known it had this been done, as he and the yardmaster were half a mile from the office at that time. The undisputed facts are: That for several days a weak bridge at Saugatuck, some 40 or more miles west of Grand Rapids, had made it necessary to detour No. 8 via Grand Rapids & Indiana and Michigan Central roads; and, while on this evening orders were given to hold No. 8 for a time in the hope that it might avoid the detour, it was expected that the train would detour. Knowing that No. 8 had detoured on previous days, and with a view to the entrance of plaintiff’s train, which he expected to arrive soon, the yardmaster telephoned the dispatcher to know what was to be done with No. 8, and was informed that it would detour. This was about 11:15. He thereupon informed the switchman at Plaster Creek of the fact, and directed him to inform plaintiff not to take the switch at the north end of the yard, but to proceed south through the yard and back in from the south. We have seen that the switchman at Sunny Side was also informed that No. 8 would detour. Hence he informed plaintiff, and he proceeded via south main to the south end of the yard by direction of the Plaster Creek switchman, where he found the yardmaster awaiting him. He entered upon the south-bound main at 11:35, being about five or ten minutes before the regular time for No. 8 at Sunny Side, by direction, of the yardmaster through the switchman. Meantime No. 8 was being held in the hope that she — 7 — might proceed via the Pere Marquette line, and at about 11:50 clearance orders were given, and the train departed with the result above stated. We must therefore inquire whether this was negligence in the train dispatcher. The proposition is that, having stated to the yardmaster that No. 8 would detour, it was negligent to send the train out without informing the yardmaster of the change before doing so. This will depend upon the printed rules and bulletins and the practice of the road and what the dispatcher had a right to understand and expect. The bulletins and rules were in writing, and the plaintiff, yardmaster, and switchman all had copies of the latter.- Their meaning was a question for the court, and a large amount of opinion evidence as to their meaning was erroneously admitted. The dispatcher had a right to expect that the rules and bulletins would be obeyed by all. Assuming that he knew when he told the yardmaster at 11:20 that the train would detour, that the yardmaster would admit plaintiff’s extra freight into the yard on the time of No. 8, which he did at 11:85, he knew that, if the rules should be obeyed, the only thing that could happen would be the delay to No. 8 which might be caused thereby. The reason for saying this is that he knew that No. 8 could not pass the Sunny Side switch without the signal required to be given by the switchman, who would be acting under rules 590 and 591, and would not “give the proceed signal unless all was right.” He knew, also, that the same would be true at the Plaster Creek switch. Furthermore, he knew that, in the event of the failure of the switchman to block No. 8 if necessary, the plaintiff’s train would be protected by its conductor under rule 99, as was done, and that in executing the switching movement at the south end of Wyoming yard the plaintiff’s train would be protected by the south board, which it was the engineer’s duty to cause to. be displayed until he was “in clear ” on the switch. So far the plaintiff had acted in obedience to the rules and the directions of the yardmaster, and no harm had befallen him. The Plaster Creek switchman, — 8 — who could see the entire length of the yard, had seen his lights go off from the main line before No. 8 passed his switch. His conductor had stood at his post, fuses in hand, and lamps burning, until the train was out of danger. Then, his work done, he started for the yard office, leaving the engineer to take his engine to the roundhouse, which he could have done without going upon the main track, or by way of the north-bound main, under protection of the yardmaster. At this point he departed from the rules. It is a significant fact that there is no evidence that any other engine was on either main, not even a yard engine. All were “in clear ” because they were on the regular time of No. 8. Even the dummy, which was scheduled to run every 40 minutes or so, was safely sidetracked, awaiting No. 8 or such other train as might be sent out on her time; for, if No. 8 detoured, it would leave the towns between Grand Rapids and Saugatuck without train service unless another train should be sent over that portion of the road, as was sometimes done where trains detoured. It is manifest that, if the rules were obeyed, the dispatcher would have a right to assume that any train going south would be under protection, and that no train would be coming north on a south-bound main on the time of No. 8, and it is clear that, having a right to proceed on the theory of obedience to the rules, he cannot be said to have been negligent in giving a clearance order at 11:55 without first calling up the yard office, and seeing that the west main was clear. See Veit v. Railroad Co., 150 Mich. 366 (114 N. W. 236), where we said: “ The train dispatcher was not chargeable with notice that if the crew of No. 42 returned to Mesick, as he expected they might, they would disregard the well-understood rules made largely for the protection of their own lives. He had a right to rely upon the observance of the rules by the trainmen, and to give his orders upon that basis. There is no evidence in this case to affect the right of the dispatcher to rely upon an observance of the rules, without which reliance he could not conduct the train movements of the road.” — 9 — See, also, Enright v. Railway Co., 93 Mich. 409, 412, 413 (53 N. W. 536); Whalen v. Railroad Co., 114 Mich. 512, 524 (72 N. W. 323). Plaintiff’s counsel appear to have recognized the force of this, and, to avoid such conclusion, attempt to convince the jury, first, that these bulletins did not apply to light engines because they mentioned trains only, and engines were not trains, and therefore there was nothing prohibiting such engines from using the left mains; and, second, that this engineer did not violate the bulletin because he did use the right-hand track when taking his train through the yard, and it was the same track when he returned with the engine, and therefore he was still using that same right-hand main. That the word “trains” included light engines other than yard engines appears from the first definition in the book of rules, viz.: “ Train — An engine, or more than one engine coupled, with or without cars; displaying markers.” The other proposition requires no discussion. The main contest, however, centers in the claim that, by reason of the custom, the plaintiff had the right to go north on the south-bound main on the time of No. 8, believing that it would not run. We have examined the rules and bulletins, and we hold first, that they are to be construed by the court, and opinion evidence as to what they meant was not admissible; second, that under these rules No. 8 was not annulled by the telephone message to the yardmaster, or in any other way, and the plaintiff had no right to consider it so; third, that, whether supposed to be annulled or not, the bulletins forbade plaintiff to run his engine north on a southbound main on the time of a regular train, or, for that matter, at anytime; fourth, the evidence, such as it was, that it was the custom to run trains north on the southbound mains, consisted of the following: (a) The yard engines were used on both mains in both directions. This was permitted under the direction of the — 10 — yardmaster when not on the time of regular trains and they were properly protected. (6) The dummy ran from near Union Station to Wyoming yard station on the south-bound main. There being no cross-over at that point, it backed up to the cross-over at Plaster Creek. Both of these were allowed by authority, and cannot be considered as an abrogation of the general rule that “trains will use the right-hand track ” and run with the course of traffic. (c) Testimony of the plaintiff and one or two other witnesses that they had seen passenger and freight engines take the left-hand track to go to the roundhouse. This testimony was meager, and was contradicted by several witnesses who were in a position to know. It did not justify an inference that the defendant knew and consented to the abrogation of this general rule, leaving engineers and trainmen to use either track at will. It is inconsistent with the object of a double track. Moreover, it appears that those bulletins are kept posted in conspicuous places, and the rules require that they be read by the engineers before every trip. Again, a man was employed whose duty and business it was to instruct new men as to the rules and bulletins. Again, the plaintiff admitted that he knew it was his duty to report infractions of these rules, and he did not do it when he saw them, thereby indicating the bad faith of all these claims. We should grant a new trial if for no other reason than that the judgment was contrary to the evidence. The plaintiff’s case reached a point upon the trial where it was made to turn on the proposition that the rule requiring engineers to use the right-hand main was abrogated by the tacit assent to a custom so common and general as to justify the conclusion that the managing officer having the making and abolition of rules knew of and approved the violation. Counsel for plaintiff cite the case of Fluhrer v. Railway Co., 121 Mich. 212 (80 N. W. 23), as sustaining the rule upon which they rest this point. That was a case where a brakeman was injured in coupl — 11 — ing cars. Mr. Justice Grant there said, with the approval of his associates : “It is well settled that a violation of the rules of the company will defeat recovery. The exception to this is where the company itself has sanctioned the custom of its employés to act in violation of the rules, and has thus virtually abrogated them. This exception is based upon the theory that it would be unjust in employers to establish rules, and then sanction their violation, and interpose such violation as a defense. Hunn v. Railroad Co., 78 Mich. 513, 526 (44 N. W. 502, 7 L. R. A. 500); Eastman v. Railway Co., 101 Mich. 597, 602 (60 N. W. 309). Fairly construed, the above rule is notice to brakemen not to enter between the cars while in motion, to uncouple them, and an agreement not to do so. The danger in doing so is apparent. Only when this rule is violated by brakemen so universally and notoriously that it is a fair inference that the company sanctioned and approved the violation is the company barred from this defense. The court instructed the jury that if they believed that the motion of the cars was so slow that it was not negligence to pass between them to uncouple them, and that such was the usual custom of brakemen under like circumstances, then such act would not necessarily prevent recovery by the plaintiff. There was evidence tending to show that it was usual and customary for brakemen to pass between the cars while in motion to uncouple them. The case was not submitted to the jury upon the theory that the company had sanctioned a violation of this rule. The question was not referred to in the instructions. Under the instructions given, this rule was virtually thrown out of consideration, and the jury permitted to find that, if it was customary for brakemen to do this, then it was not negligence on the part of the deceased. Custom alone is not sufficient. It was held in Glover v. Scotten, 82 Mich. 369 (46 N. W. 936), that where a safe place was provided for switchmen to ride, and they chose to ride in a more dangerous one, and always did so, that would not relieve them from contributory negligence. When the defendant had entered into the contract with the deceased, in which he acknowledged the receipt of a copy of these rules, and agreed to abide by them, it had met the plaintiff’s case, even though it was not negligence per se to go between the cars when in motion. The onus prdbandi was then cast upon the — 12 — plaintiff to show that the company sanctioned a departure from the rule by a custom so universal and notorious that, the company was presumed to have had knowledge of it and to have ratified it.” The later case of Nichols v. Railway Co., 125 Mich. 394 (84 N. W. 470), was reversed for the reason that the court erred in his instruction upon this subject. In the case of Ball v. Hauser, 129 Mich. 401 (89 N. W. 50), we said: “ Whatever we might conclude, were it necessary to pass upon the question, it is apparent from the cases cited that, even in railroad cases, recovery is permitted only when the testimony shows that the rule has been abrogated, and this may be inferred from the circumstances fairly establishing it. If that rule should be applied to this class of cases, we must inquire whether this proof warrants such a conclusion. The plaintiff claims that his proof does warrant it, because he has shown by testimony that some of the men have been in the habit of riding on the elevator; that one of the defendants had seen it done without remark; that he rode on the elevator himself; and that in taking up some kinds of freight it was necessary that a man should ride. " The fact that some of the men rode down upon the elevator, even if occasionally seen by the defendants without remark, is not inconsistent with the claim that said rule was relied on, and not abrogated. Neither does the fact that one of the defendants rode upon it indicate an intention to permit the men to do so. Nor does the fact that it was necessary for men to ride up occasionally with bulky articles, if it was necessary, establish the abrogation of the rule. Even if it could be said to justify the plaintiff in riding up, it does not tend to show a consent that he should unnecessarily ride down in violation of the rule, which he must have understood from the notice, and which, if the testimony of other witnesses is true, he was repeatedly warned against doing. We think the testimony offered does not establish the claim that the defendants sanctioned such use of the elevator. Not only does this testimony not prove it, but much evidence tends to disprove it. The defendants are not shown to have found it necessary to send men up on the elevator with their materials, or that they expected that Nordella & Owen would do so. They stationed a man at the top to receive material, a. — 13 — part of whose duty it was to warn men against, riding down, which he is shown to have done repeatedly. The engineer below performed a similar duty at defendants’ direction ; and the defendants at different times told men not to ride upon the elevator. The witness Brogden says that he repeatedly told Ball to keep off from it, and that he was in the habit of jumping on while it was in motion. It was the general custom for the men to go up and down on the ladders provided for the purpose. None of these things was disputed, except that Ball denies being warned to keep off, thereby contradicting several witnesses. This denial raised a question of fact as to that point, and we must therefore assume that he was not warned; but that, and the fact that he and others sometimes rode, do not prove that the rule was abrogated by defendants’ sanction, nor did it warrant the judge’s leaving the question to the jury. The undisputed proof shows that the defendants were insisting upon their rule. It was not their duty to hire men to warn others not to disobey a known direction; yet they did it. One warning would ordinarily be enough; yet these defendants not only kept the printed notice up, and men to enforce it at each end of the route, but themselves sometimes reproved men who still persisted in riding. An employer ought to have some rights which his employés are bound to respect. There is nothing to compel them to afford elevator transportation, or to preclude their providing for carrying freight to the exclusion of passengers without being liable to such as shall insist on riding in violation of instructions.” In the present case, as in that, there was an absence of testimony that defendant’s officers who manage and make rules knew or ever heard of any violations of the rule. They persisted in handing out their rules and keeping the bulletins posted, and, as in the other case, they kept a man whose duty it was to see that they were obeyed so far as possible. There was a failure to show an abrogation of this rule, and the court should have so instructed the jury. The law requires the making of regulations and rules by railroads. It punishes men who disobey them by fine and imprisonment. It is a startling proposition to men who travel on railroads that a regulation requiring engineers to observe the common rule of the road and keep to the — 14 — right track may be disobeyed with impunity whenever an employé may have reason to think a particular train will not run, and not only that, but, after causing the death of one, painful injury to several, and wrecking his employer’s property and subjecting it to the payment of damages to its passengers, he may still sue the employer and recover large damages upon the theory that his criminal disobedience was invited by reason of the employer’s failure to anticipate and provide against it by taking him into its confidence, to the general demoralization of its business. Railroading is a matter of minutes and seconds. A dispatcher’s-office must depend upon rules and the obedience of station agents, telegraphers, engineers, conductors, and switch-men. Great care is taken to protect the public against the consequences of disobedience or mistake. The rules do not permit an engineer to go unprotected on the time of a regular train, even though he has reason to believe it will not run. He is still required to protect against accident, by obeying the rule, and it is made criminal to do otherwise. Written rules of railroad companies cannot be treated as abrogated by such railroad companies on testimony tending to show nothing more substantial than insubordinate and unreported criminal disobedience on the part of some of the employés. This is simply a case of' “taking a chance,”whereby many others “were made to take chances.” There is another question that we refer to, not because it is necessary to a disposition of this case, but because it-has arisen in other cases. It involves the statute (Act No. 30?, Pub. Acts 1909), which provides: “An act to authorize parties litigant, when they call as-witnesses in their behalf the opposite party, employé or agent of said party, to cross-examine such witnesses, and providing that they shall not be bound by their answers. “ The People of the State of Michigan enact: “ Section 1. Hereafter in any suit or proceeding in any court of -law or equity in this State, either party, if he shall call as a witness in his behalf the opposite party, employé- — 15 — or agent of said opposite party, or any person who at the time of the happening of the transaction out of which such suit or proceeding grew, was an employé or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party; and the answers of such witness shall not interfere with the right of such party to introduce evidence upon any issue involved in such suit or proceeding, and the party so calling and examining such witness shall not be bound to accept such answers as true.” It was the claim of the plaintiff’s counsel that, under this statute, they were entitled .to call as witnesses any persons who were in the employ of the defendant at the time of the accident, and obtain the benefit of their testimony without being bound by it. They insisted that the witnesses so called were not their witnesses, but the defendant’s witnesses, and that any testimony given by them was not a part of the plaintiff’s case except in so far as plain, tiff wished to make it such. Relying on this theory, they called witnesses Perry, Lawless, Venneman, Bays, Hibner, and Snyder. The title would seem to be enough to show that these were not to be called as defendant’s witnesses. They are there referred to as employés or agents of the opposite party and as witnesses called in behalf of the party calling them. The act allows such witnesses to be cross-examined and contradicted by the party calling them. The provision that such calling shall not interfere with their right to contradict or deny the truth of their statements conferred no new right. This act does not give the right to make them the witnesses of the adversary of the party calling them. We have gone carefully over the record and briefs of counsel, and are constrained to say that defendant has not been shown to be negligent, that plaintiff was negligent in his disobedience of the rules of the road, which was the sole cause of his injury, and, being fully convinced that under no theory can plaintiff ever justly recover damages growing out of this transaction, the judgment is reversed, and a new trial is denied. — 16 — /Steere, McAlvay, Brooke, and Stone, JJ., concurred with Ostrander, C. J. Footnotes [*] Continued from Vol. 167.