Wight v. Michigan Central Railroad

Ostrander, J.

The declaration of the plaintiff alleges the duty of the defendant and the breach thereof, in the following language:

“And it was then and there the duty of the defendant to have the cars in said train so equipped with some form of coupling device that said cars could be uncoupled from either side of said train without the necessity of going^ between the cars, and to have upon such cars such sufficient coupling device as to have enabled the plaintiff to uncouple any two of said cars from either side of the train without going between them. Yet the defendant wholly disregarded its said duty, had in said train two certain cars * * * which could not be uncoupled except by going between said cars, of which the defendant had notice, but of which the plaintiff was wholly ignorant. And the plaintiff avers that on said day * * * it became the duty of the plaintiff to uncouple said two cars, and to do so, because of said neglect of duty by defendant, he was wrongfully and illegally compelled to go between them to pull the coupling pin by hand and so uncouple said cars, * * * ” in doing which and without negligence on his part he was injured.

No reference is made to any statute. Assuming the declaration to be sufficient to sustain a judgment based upon testimony of an initial equipment of the cars with a coupling device designed to meet the duty imposed by 2 Comp. Laws, § 5511, and of a failure of the device, upon the particular occasion, to operate as it was designed to operate, the important questions presented are whether it can be said as matter of law (1) that defendant was not negligent; (2) whether plaintiff was guilty of negligence contributing to his injury.

The cars in question were foreign freight cars, received and inspected by defendant on the day plaintiff was injured, and placed in and made part of a regular freight train of some 20 cars which left Jackson, Mich., at about 2 o’clock in the morning. The undisputed testimony is that both cars were equipped with coupling devices designed to permit them to be coupled and uncoupled without the necessity of going between the cars. These devices were upon each end of each car; the extended levers by which they were designed to be operated being at corners of the car diagonal to each other. When two cars were coupled together, they could be uncoupled from either side, but not by the use of the same lever. Unless we are to hold, as it is intimated in the opinion of Mr. Justice Moore we should do, that the device for uncoupling upon each end of each freight car must, in order to conform to the statute, be capable of operation from each side of the car, then it is conclusively established by the testimony that these cars were equipped as the statute requires, that from either side by use of an apparatus upon one car or the other the cars could be uncoupled provided the device was in working order, and, if one was defective, or for any reason did not perform as designed to perform, the release of the same cars could be effected by the use of the lever upon the other car from a position upon the other side of the train. I find nothing in the record justifying the conclusion that the device itself did not conform with the statute requirement. That it is in common use on cars within and without this State is undoubted. We may take notice that no actions have been begun by the commissioner of railroads to recover penalties because cars equipped with such a device are not lawfully equipped.

Considering the testimony most favorable to the plaintiff, it appears that he tried to pull the coupling pin on one of the cars by the use of the device attached to the end of that car, and was unable to do so. The plaintiff signaled to the engine for “slack,” and, when the engine and the cars came back, he used the lever, and was unable to pull the pin. The conductor of the train testified also, that after plaintiff was injured he tried, without success, to operate the lever. Why it would not operate is wholly unexplained. How long it had been in the condition in which plaintiff found it is not shown. When it had last been used with success, or whether it had ever been operated, is not shown. It cannot be said, as matter of law, there was no testimony tending to prove that the device was defective at the time plaintiff attempted to use it. In view of the character of the inspection which was made of this car at Jackson, it cannot be said, either, that the defendant was not guilty of a violation of the statute in running this car. The inspection proven was one which did not extend to actual operation of the device. The statute says that no freight car shall be run unless furnished with safety couplers as provided in the act. The test is not whether a device is provided, but it is whether the cars can be coupled and uncoupled by its use. The duty to equip is an absolute one, and so, I think, is the duty to start no car upon a journey without an operative equipment. We are not, however, called upon to decide, and therefore should not decide, whether the fact that such a device does not upon a particular occasion perform is of itself under all circumstances conclusive proof of a violation of the statute.

Assuming that a breach of defendant’s duty is made out, there is an insuperable difficulty to sustaining the judgment for the plaintiff, arising from the undisputed evidence of his own want of ordinary care. It is the undisputed testimony that, after plaintiff had been injured, the conductor of the train, without going to the other side of the train, but by mounting and standing upon the dead ends or dead woods of the car, and, without signaling for “slack,” pulled the pin plaintiff tried to reach with his hand by using the device, or a portion of it, upon that car. He then signaled that the cars were uncoupled, and the engine, with the cars attached to it, went up the hill. When it returned for the other cars, it was coupled to the ear where the uncoupling had been accomplished. The train of cars in question was stalled. The testimony, undisputed, is that the rear of the train was held by brakes and a man sent to the rear to protect the train. It was stationary, except as the slack permitted movement, until a portion of it could be cut off, when the forward cars would be taken over the hill. Plaintiff knew that the car next the one having the defective or nonworkable device was also equipped with a similar device. He knew the purpose of such devices. He testified:

“Q. And you knew if you stuck your hand in between those deadwoods you were liable to have it mashed, didn’t you ?

“A. Why, certainly.”

He made no effort to use the device upon the other car. Clearly there was a comparatively safe way and a very dangerous way known to him, and he selected the more, and the most, dangerous method. It was a way so dangerous that the legislature of the State and the congress of the United States have made it the duty of railroads to provide an equipment by which cars can be uncoupled * ‘ without the necessity ” of going between the cars. He is relying, in this action, upon the duty imposed upon the master without regarding the correlative duty resting on himself to use the equipment provided for his safety. More than this, he was experimenting. His testimony clearly shows that he did not know that with his hand upon the pin he could give a signal which could be seen by the engineer. He bases his claim of necessity for his action upon the fact that, as the train was on a curve, he could not have made signals if using the lever on the opposite side of the train. But he did not try to do what the conductor later did, uncouple and then signal. He did not call the conductor to signal for him, if it was found to be necessary to signal.

In the opinion of Mr. Justice Moore, it is said that from the testimony of the plaintiff it is clear—

“That the only way the car could be uncoupled from the side of the train upon which he stood was to do just what he attempted to do. It should not be forgotten that this train was not stalled in a yard, but it was stalled between stations and blocked the only track between stations, and no train could pass until this train continued its journey, and its continuing on was important. The whole situation was before the plaintiff. He was in a difficult situation.”

In my opinion these considerations are wholly insufficient to justify or excuse the conduct of the plaintiff. On the contrary, if they are permitted to excuse him and others like him who follow convenience into places of greatest danger, who with almost incredible temerity choose to risk limb and life without necessity, courts will have done little to effect what the legislatures have made possible, will have done little to make simple such situations as the one in which plaintiff was placed. In view of the argument referred to, I call attention to what, in fact, happened. The locomotive was used to convey plaintiff to a place where he could be cared for, the train meantime occupying the track. These were inevitable consequences if he was injured. The rule that one who voluntarily and unnecessarily exposes himself to an imminent, known danger, and so contributes to his injury, cannot escape the consequences because the negligence of another concurred in producing the injury, and the rule that, where there is a comparatively safe and a more dangerous way of discharging a duty, it is negligence to select the more dangerous, are salutary, and have long been applied by the courts. They have been applied in cases almost precisely like this one. Morris v. Railway Co., 108 Fed. 747, 47 C. C. A. 661; Gilbert v. Railway Co., 63 C. C. A. 27, 128 Fed. 529. They should be applied here. Applying them, we are required to say as matter of law that plaintiff has not shown himself free from negligence which contributed to his injury. If by any possibility it can be said that the question of his negligence was for the jury, it was error to instruct the jury that—

“ The plaintiff was not required to go on the other side of the train to avoid going between the cars, if he could not from such other side signal the person on the engine.”

The judgment is reversed, and a new trial is granted.

Hooker, Brooke, and Stone, JJ., concurred with Ostrander, J.