Walsh v. Lake Shore & Michigan Southern Railway Co.

Kuhn, J. (after stating the facts). There are 29 assignments of error, and the one which is chiefly argued, and upon which principal reliance seems to be based for a reversal of this case, is that the trial judge erred in denying defendant’s motion for a new trial on the ground that the verdict is contrary to the weight of the evidence produced on the trial of said cause, and at variance with the great preponderance of the evidence. A consideration of this assignment of error has necessitated a careful study of the record, and it resolves itself finally into the question whether the testimony of the witness Wynn, who was a member of the crew on the night in question, should be disregarded, and the testimony of Jones, the conductor whose negligence, it is the plaintiff’s claim, was the direct cause of the injury, should be accepted as a truthful statement of the facts surrounding the accident. We think that the testimony of the members of the crew clearly establishes that on the night in question Walsh was engaged in performing the duties of what was known as a “fieldman.” Jones, the conductor, testified with reference to these duties as follows: _ “Q. Was Mr. Walsh performing any duties that night, the duties known as fieldman? “A. Yes, sir. “Q. What are the duties of a fieldman? “A. Throwing the switches and coupling up the cars and setting brakes on cars. “Q. Was he performing those duties that night? “A. All with the exception of putting the brakes on at that time.” The engineer, King, said: “He was acting as fieldman at the time. The duties of fieldman are throwing switches for different cars to go in and opening knuckles so that cars will couple. That is done so that they will couple when they come together. A knuckle can be opened so that, when a car is swung against it, they will close, and the cars — 183 — will be coupled without a man being present at the coupling operation, and that is what I mean by opening knuckles; that is, throwing up the lever of the automatic coupler, so that, when the next car bumps into it, the coupling will close, and that was a part of Mr. Walsh’s duties. * * *” Nelson, yardmaster, testified: “On that night of the accident, he was performing the duty of fieldman. He was performing these duties under the direction of Conductor Jones. * * * The conductor and the fieldman always, as a rule, go together. They work together, and are generally together. The fieldman is ahead of the conductor and opens the knuckles, if there is any openings; that is part of his duties, to open knuckles, and if it becomes necessary to couple up cars, that is part of his duties.” Wynn, head switchman, testified that Mr. Walsh was not out on the lead at all; that he was in the field when he was killed; that he had talked with him in there as the train pulled back off track No. 4 just before the accident; and that Jones was at switch 4 when he gave the fatal signal. It was the claim of Conductor Jones (who was acting that night for the first time as conductor of that crew) that he turned no switches during these operations; that he received the signals from Walsh to come back or go ahead, and transmitted the signals to the engineer. It is the defendant’s claim that the testimony of Jones is corroborated by the physical fact that, where these switching operations took place, there was a curve in the track, and that it would have been impossible for the engineer to see Jones, because of the curve, if he had been at switch No. 4, as claimed by witness Wynn. The engineer, however, upon the witness stand, stated that, although he had testified before the coroner, his attention was never called to the question whether there was a curve in that track until he became a witness upon the trial in the lower court. An examination of the plat which — 184 — was offered in evidence by the defendant further discloses that the curve shown is very slight and was not such as to have obstructed the engineer’s view to such an extent that he could not have seen up the lead track past switches 4 and 5. A reading of this record shows that there are discrepancies in the testimony of witnesses for both plaintiff and defendant, and these discrepancies and apparent contradictions need not be pointed out here. The jury, who heard this testimony, and who saw the witnesses upon the witness stand, were in a better position to determine what testimony should be discredited than we are. The trial judge also had the advantage of seeing these witnesses on the stand, and in denying the motion for a new trial, alleging, among other reasons, that the verdict was against the weight of the evidence, had the benefit of this in making his determination, and had an excellent opportunity to judge of their truthfulness. In the recent case of Druck v. Lime Co., 177 Mich. 364 (143 N. W. 59), this court, speaking through Mr. Justice Stone, said: “The rule is well settled that this court will only reverse a case upon the question of the weight of the evidence when the verdict is against the overwhelming weight of the evidence. The verdict must be clearly against the great weight of the evidence to require this court to overrule the decision of the circuit judge in refusing a new trial. Gardiner v. Courtright, 165 Mich. 54, 62 (130 N. W. 322); Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592). We cannot say that the verdict in this case was against the overwhelming weight of the evidence, in .the light of the record.” This rule has been repeatedly announced by the court, and we therefore conclude in the instant case that it cannot be said that the circuit judge abused his discretion in refusing a new trial on the ground — 185 — that the verdict was against the weight of the evidence. It is also contended by appellant that, even if the testimony of Wynn is to be believed, the act of Jones in omitting to turn the switch was not a negligent act for which an action would lie, for the reason that an injury to Walsh could not have been reasonably anticipated as a result of the act. The facts in the recent case of Evans v. Railway Co., 181 Mich. 413 (148 N. W. 490), are in many respects very similar, indeed, to the facts in the case now before us. In that case, the action was brought under the Federal statute by a car repairer who was working on a track which was attached to a lead track, and cars had to be shunted in and off this, lead track by the opening and closing of switches; and, while he was working on one of these tracks, the switch was opened and a car thrown in on that track, and he received injuries, from which he died the day after. The only key that would open the switch was found in the possession of the assistant foreman, and it was held that the act of the assistant foreman in opening the switch and throwing the car in on this track, where the deceased was working, was an act of negligence, for which the defendant was liable. We can see no difference in principle between that case and the case at bar. Mr. Justice Moore, speaking for the court in that case, said: “The respective rights of employers and employed under the Federal statute involved here, and its various amendments, have received the careful attention of the Federal courts, and full discussion may be found in Second Employers’ Liability Cases, 223 U. S. 1 [32 Sup. Ct. 169, 38 L. R. A. (N. S.) 44]; Michigan Central R. Co. v. Vreeland, 227 U. S. 59 [33 Sup. Ct. 192, Am. & Eng. Ann. Cas. 1914C, 176]; St. Louis, etc., R. Co. v. Hesterly, 228 U. S. 702 [33 Sup. Ct. 703]; Central R. Co. of New Jersey v. Young, 200 Fed. 359 [118 C. C. A. 465]; Grand Trunk West — 186 — ern R. Co. v. Lindsay, 201 Fed. 836 [120 C. C. A. 166]; Louisville, etc., R. Co. v. Wene, 202 Fed. 887 [121 C. C. A. 245]; Pennsylvania R. Co. v. Goughnour, 208 Fed. 961 [126 C. C. A. 39]. “Under the principles of law stated in these cases, especially the last two, we think it cannot be said, as a matter of law, that there was no negligence shown on the part of Mr. Seeburger.” Under plaintiff’s theory of the case, it was the duty of Walsh, who was working in the field, to open the knuckles on the cars and keep them from drifting back on the lead; and if, through the carelessness and dereliction of Jones, switch No. 4 was not turned, and the cars were shunted in on that track, and as a result Walsh met his death, we cannot say, as a matter of law, that such negligence of Jones was not the proximate cause of the injury. The crucial question in this case seems to be: Who failed to turn switch No. 4? And upon this record that became a question of fact for the jury. With reference to the contributory negligence of Walsh, the trial court charged the jury as follows: “As I have already intimated, if you find that defendant is guilty of negligence, as I have explained, then you will determine whether or not the plaintiff’s decedent (that is, Edward M. Walsh) is guilty of contributory negligence (that is, whether plaintiff’s decedent is guilty of any negligence that contributed to his injury). If he was guilty of any negligence that contributed or helped to cause the injury, that is what is known as contributory negligence, and contributory negligence is a want of ordinary care on the part of the person injured by the actionable negligence of another concurring with the negligence and contributing to the injury as a producing cause. “The act under which this action is brought, as I have already read to you, says that the fact that the employee may have been guilty of contributory negligence shall not bar his recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. — 187 — “The act under which this action is brought says that the fact that the employee may have been guilty of contributory negligence shall not bar his recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. “If you find that the plaintiff is entitled to recover, and that the decedent was not guilty of contributory negligence which contributed in any degree to his injury, then the plaintiff would be entitled to recover full damages (that is, all damages resulting from the negligent acts of the defendant). “If you find that the decedent, Edward M. Walsh, was guilty of contributory negligence, then the plaintiff will not be entitled to full damages, but you will have to deduct from the plaintiff’s full damages such damages as you may find have been suffered by reason of decedent’s own negligence (that is, if you find that the plaintiff is entitled to damages, you will have to estimate first how much damages the plaintiff has suffered, and then, if you find that the decedent was guilty of some negligence, you will subtract from the entire damages such proportion as you find was caused on account of the decedent’s own negligence).” We are of the opinion that this properly submitted the question of plaintiff’s decedent’s contributory negligence to the jury, and that there was no error in this regard. After the argument of the case in this court, it was suggested to counsel that the court would be pleased to hear from them as to whether it can be said that the negligence of a fellow-servant is one of the risks that the employee assumes,' in view of the language of the United States Supreme Court in the case of Southern R. Co. v. Crockett, reported in 234 U. S. 725, 34 Sup. Ct. 897, that: “By the employers’ liability act the defense of assumption of risk remains as at common law, saving in the cases, mentioned in section 4; that is to say, ‘any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of the employee.’ ” — 188 — Counsel for appellee, we think very properly, called our attention to the fact that this question.here suggested was not brought to the attention of the court below in any way, was not considered or ruled upon by that court; that no assignments of error are before us with relation to it, nor was it discussed by counsel in their original briefs; and that therefore the question is not here open for consideration or review. Our attention is challenged to the case of Maclean v. Scripps, 52 Mich. 214 (17 N. W. 815), in which Mr. Justice Campbell, in referring to the right of this court to consider questions not raised by assignments of error and exceptions, said: . “We have no right, under bill of exceptions, to review anything but such action of the court itself as is excepted to. The power of this court to review the action in circuit courts on trials is one derived entirely from the statute and common-law practice on bills of exceptions.. The law has left all things not legitimately belonging to exceptions to be managed by the circuit courts in furtherance of their own authority. We have no more power to review what they have not passed upon than to exercise original jurisdiction in civil matters. It would be going entirely beyond our authority to notice what has not been ruled on and excepted to below.” See, also, Wilkinson v. Earl, 39 Mich. 626; Benson v. Bawden, 149 Mich. 584 (113 N. W. 20, 13 L. R. A. [N. S.] 721); Marshall v. Accident Ass’n, 151 Mich. 245 (114 N. W. 1028); Conger v. Hall, 158 Mich. 447 (122 N. W. 1073). For this reason, therefore, we must decline to pass upon the question above suggested. We have examined such other assignments of error as are discussed by counsel in their briefs, and those not so discussed must be deemed to have been waived. Supreme Court Rule No. 40; People v. Cole, 139 Mich. 312 (102 N. W. 856); Nissly v. Railway Co., 168 Mich. 676, at page 682 (131 N. W. — 189 — 145, 185 N. W. 268, Am. & Eng. Ann. Cas. 1913C, 719). Those that were commented upon in the briefs and are not herein specifically referred to we deem without merit. We find no error in the record, and judgment is therefore affirmed. Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit.