Miller v. Ann Arbor Railroad

Brooke, J. (after stating the facts). Whether the accident happened wholly or partially because of the negligence of the plaintiff in stopping his own car too suddenly raised a question of fact, which was submitted to the jury by the court under proper instructions. We are of opinion too that the proper rule was enunciated by the court with reference to plaintiff’s assumption of risk. The important question for determination upon this record is whether the court was right in submitting to the jury the question of defend [305] ant’s negligence based upon evidence of the condition of the lining of the brake shoes at the time of the accident. If, as found by the jury, the defendant was negligent in that it had not exercised reasonable care to see that the lining of the brake shoes on Whitmore’s car was seasonably renewed, it would seem that that negligence must have grown out of the fact that Whit-more himself failed to do his duty in the premises. The testimony of Argersinger to the effect that, he had on several occasions renewed the lining of the brake shoes on the Whitmore car as they became worn, and the testimony of the plaintiff that, during the 17 months he had been foreman of the gang on. section 27, he. had renewed the lining on the brake shoes of his car once or perhaps twice makes it clear, we think, that it was in contemplation of the parties, the plaintiff as well as the defendant, that this small, and insignificant repair should be made by the section boss or one of his men under his direction. Inasmuch, therefore, as the defendant could not have been negligent unless. Whit-more, a fellow employee of the plaintiff, was negligent, the court clearly was in error in instructing the jury that there was no negligence on the part of Whitmore and yet that if they found the brake shoes to have been “not reasonably safe and efficient for the purpose for which the car was used,” they might find the defendant negligent. Section 2 of the so-called Federal employers’ liability act provides: “That every common carrier * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” * * * In the Second Employers’ Liability Cases, 223 U.S. 1 (32 Sup. Ct. 169, 38 L. R. A. [N. S.] 44), it is held: [306] (a) That the Federal act supersedes all State regulation upon the subject. (b) That in removing the defenses of the assumption of risk, the fellow-servant doctrine, and modifying that of contributory negligence, the congress acted within proper constitutional limitations. See, also, Seaboard Air Line Ry. v. Horton, 283 U. S. 492 (34 Sup. Ct. 635, L. R. A. 1915C, 1 Am. & Eng. Ann. Cas. 1915B, 475). Under these authorities it is therefore clear that if the accident to plaintiff occurred by reason of the fact that the lining of the brake shoe on Whitmore’s car had become unduly worn (and that was the theory upon which the case went to the jury), the defendant might be held liable for negligence, that negligence consisting in the failure of Whitmore, the plaintiff’s fellow servant, to seasonably renew, or cause to be renewed, the lining. The jury should have been instructed that they could find the defendant guilty of negligence only if they found that Whitmore was guilty of negligence because of his failure to act with reasonable prudence in the premises. Corporations act through agents or servants, and if they are liable for negligence, they are so liable because of the negligent act or omission of some particular agent or servant. It is pointed out by counsel for defendant that, though plaintiff showed that Whitmore’s car, when running at a certain rate of speed, could not be stopped by application of the brake within a certain number of feet, there is no evidence in the record tending to show within what distance Whitmore’s car could be stopped with brakes equipped with proper linings, and therefore that the jury had no legitimate basis for a finding of negligence on the part of the defendant or any of its servants. We are of opinion that this is a just criticism of the proofs as they exist in this record. The record fails to disclose whether the hand cars [307] in question were originally furnished to the several section foremen equipped with brake shoe linings, or without such equipment. If they were originally furnished without such equipment and the linings were added by the section men themselves as occasion required from time to time, in order to facilitate the handling of the cars, a different question would be presented. Judgment will be reversed, and a new trial ordered. Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.