Glappa v. Detroit, Grand Haven & Milwaukee Railroad

Brooke, J. (after stating the facts). The first assignment of error argued by appellant is based upon the action of the court below in striking Exhibit 2 from the record and in refusing to direct a verdict in favor of the defendant railway upon the ground that, under the agreement, the duty of keeping the side track free from obstructions rested upon Boomer. There is no doubt that, as between Boomer and the railway, the latter had a right to provide that Boomer should keep the side track clear. Mann v. Railroad Co., 135 Mich. 210 (97 N. W. 721). But in an action against the railway company by a third person, based upon the alleged negligent movement of cars over an obstructed track, resulting in injury to such third person, it seems clear that the contract between the railway company and Boomer was incompetent and immaterial. The matter here to be determined is not the liability of Boomer but the liability of the defendant railway. Robinson v. Railroad Co., 135 Mich. 254 (97 N. W. 689). It is next urged that a verdict should have been directed for defendant upon the ground that the evidence does not show negligence on the part of the defendant railway. It is said that, if there was sand upon the track which caused the derailment and consequent injury to plaintiff, it was not put there by defendant railway, nor was it the duty of the railway to remove it. It is true that, if there was sand upon the track which caused the derailment, it was [80] placed there either directly or indirectly by Boomer, and it is equally true that it was Boomer’s duty to have caused it to be removed. It does not, however, therefore necessarily follow that the defendant railway was free from negligence. The mere presence of the sand upon the track was no menace to the plaintiff. If the cars had not been moved, the plaintiff would not have been injured. It was the alleged negligent movement of the cars over the accumulated sand which caused the injury. Appellant insists that it owed no duty to plaintiff, because plaintiff was Boomer’s employee, and the work was carried on in Boomer’s private yard .under a contract which imposed upon Boomer the duty of keeping the track clear. We are unable to agree with this contention. Plaintiff was rightfully upon the premises where, at the time, the defendant railway, in the prosecution of its business, caused the movement of the cars under a condition which resulted in plaintiff’s injury. It was the duty of the appellant, in conducting the operation, to use reasonable care to avoid injury to those lawfully upon the premises. Whether it discharged this duty was a question for the jury. Finally it contended that plaintiff was guilty of contributory negligence as a matter of law. It appears that there was an open space near the track, and that plaintiff could as easily have driven 40 or 50 feet away as to have stopped where he did. He was an experienced teamster and knew the conditions in the yard. He testified that he made no observations to see whether there was sand on the tracks. He was not at the time charged with the duty of clearing the track. We do not think it can be said as a matter of law that he was negligent in failing to observe the condition of the track and in stopping his wagon in such close proximity to the line of cars. The conductor of the train noted his position before giving [81] the signal to start, and testified that he believed the plaintiff to have been at a safe distance, otherwise he would not have proceeded with the movement. This question, likewise, was for the jury and was determined by them, under the proper instructions. The judgment is affirmed. McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.