Tuttle v. Detroit, G. H. & M. Railway Company

This was an action for negligence resulting in the death of plaintiff's husband and intestate, Orson Tuttle, a brakeman in the defendant's employment. The declaration contained three counts; the first of which charged that on or about the thirtieth of October, 1882, the said Tuttle was in the employ of the defendant in the city of Detroit at the 'Detroit, Grand Haven & Milwaukee yards,' and, in the course of his ordinary employment. was ordered to couple some cars standing on a certain track known as 'Boot-Jack Siding;' that said siding is a double-curve track containing a very sharp curve; that, in compliance with the order, he proceeded to couple certain cars on said siding, which were near a certain boat-slip, and, while he was endeavoring to couple said cars, the draw-heads of the cars failed to meet, and passed each other, allowing the said cars to come so close together that he was crushed to death; that there were no bumpers nor other device on either of the said cars to prevent them from going together, in case said draw-heads failed to meet and passed each other; and that the only device on said cars for the purpose of keeping them apart, and to receive the concussion in coupling, was the draw-heads aforesaid. The charge of negligence was that the defendant, disregarding its duty, neglected, in the construction of its said cars, to provide any means to prevent injuring its said employe in case the draw-heads of its cars so constructed should fail to meet or pass each other under circumstances set forth; and that the said defendant, in the construction of said 'boot-jack siding,' so called, negligently and unskillfully constructed the same with so sharp a curve that the draw-heads of the said cars failed to meet and passed each other, thereby causing the death of the said Orson Tuttlew hile in the act of coupling said cars as aforesaid, without fault or negligence on his part.

The third count was substantially the same as the first. The second count, which charged a defective construction of the car, in not supplying it with bumpers, or other means of preventing the draw-heads from passing each other, was abandoned at the trial. As stated in the brief of the plaintiff's counsel, 'the first and third counts allege that boot-jack siding was negligently and unskillfully constructed by the defendant with so sharp a curve that the draw-heads of the cars in use by it would pass each other, and cause the cars to crush any one who attempted to make a coupling thereon;' and this alleged faulty construction of the track was the principal matter of contest on the trial,-the plaintiff contending that the defendant was bound, in duty to its workmen and employes, to construct a track that would not expose them to the danger which existed in this case; while the defendant contended, and offered evidence to prove, that the track was constructed according to the requirements of the situation, a sharp curve being necessary at that place in order to place the cars, when loading, along-side of the dock or slip; that such curves are not uncommon in station yards; that in such conditions the draw-heads of cars quite often pass each other when the cars come together; that this must be presumed to have been well known to Tuttle, the deceased, who was an experienced yardman; that he accepted the employment with a full knowledge of its risks, and must be held to have assumed them; and that it was negligence on his part to place himself in such a situation as to incur the danger and suffer the injury complained of. It appeared by the evidence that, when trying to make the coupling, the deceased stood on the inside of the curve where the corners of the cars come in contact when the draw-heads pass each other, and will crush a person caught between them; whereas on the outside of the curve they are widely separated, and there is no danger. The defendants contended that the position thus taken by Tuttle was contributory negligence on his part. On the other hand, the plaintiff offered evidence tending to show that it was usual for the brakeman, in coupling cars on a curve, to stand on the inside, so as to see the engineer and exchange signals with him for stopping, backing, or going forward. The defendants contended, and offered evidence tending to show, that this was not necessary, as there were always the yard-master or others standing by and co-operating, by whom the signals could by given.

This statement of the pleadings and of the leading issues raised on the trial is sufficient for properly understanding the question of law presented to the court. Upon the evidence adduced, the judge directed the jury to find a verdict for the defendant, holding that Tuttle wantonly assumed the risk of remaining upon the inside of the draw-bar when he should have gone on the other side, and that the defendant ought not to be held in this action.

O. M. Springer and F. A. Baker, for plaintiff in error.

[Argument of Counsel from pages 191-193 intentionally omitted]

E. W. Meddaugh, for defendant in error.

BRADLEY, J.