Beauchamp v. Michigan Central Railroad ( 1925 )

I am not in accord with the conclusion reached in this case by Mr. Justice SHARPE. In reaching the conclusion which he has he has, in my judgment, decided questions of fact as questions of law.

The case of Louisville, etc., R. Co. v. Strange, 156 Ky. 439 (161 S.W. 239), lays down the proper rule to be applied in such cases:

"It is the rule that brakemen on a train assume the risks and hazards arising from such jerks as are usual and ordinarily incident to the prudent operation of the train, and if injured or killed as a result of such a jerk there can be no recovery;but if killed or injured as the result of a jerk which wasunusual and unnecessary and so violent as to show a want ofordinary care on the part of those operating the train, then arecovery may be had."

Other cases supporting this rule are: Erie R. Co. v.Linnekogel, 248 Fed. 389, 160 C.C.A. 399; LaMere v. TransferCo., 125 Minn. 159 (145 N.W. 1068, Ann. Cas. 1915C, 667);Devine v. Railway Co., 185 Ill. App. 488, 266 Ill. 248 (107 N.E. 595, Ann. Cas. 1916B, 481); Louisville, etc., R. Co. v.Wright, 202 Ala. 255 (80 So. 93); Jones v. Railroad Co.,176 N.C. 260 (97 S.E. 48); Dumphy v. Railway Co., 82 W. Va. 123 (95 S.E. 863, 10 A.L.R. 1152); Westling v. Railway Co., 101 Kan. 87 (165 P. 669); Ft. Worth, etc., R. Co. v. Stalcup (Tex.Civ.App.), 167 S.W. 279; Galveston, etc., R. Co. v. Paschall,41 Tex. Civ. App. 357 (92 S.W. 446); Chesapeake, etc., R. Co. v. Proffitt, 218 Fed. 23, 134 C.C.A. 37; Graber v. RailwayCo., 159 Wis. 414 (150 N.W. 489); Cleveland, etc., R. Co. v.Gossett, 172 Ind. 525 (87 N.E. 723); Waters v. Guile, 234 Fed. 532, 148 C.C.A. 298; Seaboard Air Line R. Co. v.Horton, 233 U.S. 492 (34 Sup. Ct. 635, L.R.A. 1915C, 1, Ann. Cas. 1915B, 475).

Let us keep this rule in mind while we examine some of the testimony. The witness James Haslip, who happened to be near the accident, testified:

"I saw this man on top of the car. He was at one end of the car, the north end. I remember seeing one car, but I don't remember any more. He was on the end farthest from me. The next operation I saw I saw a man on top of the car as the engine came back, and I saw him when it struck the car. I saw him tumble down between the cars. They were struck hard.

"Q. Can you explain a little more in detail to the jury the force with which they were struck. * * *

"Q. What was the speed of the car?

"A. Well, I would not say what the speed was, but it was going fast. * * *

"Q. It was going fast?

"A. Yes, sir, it was. * * *

"Q. With what force did it collide with the car on which this man was standing? * * *

"A. Well, from what I could see from where I stood in the car, the car came with such force that it broke him absolutely loose from the car. * * *

"Q. What did you hear at the time of the impact?

"A. Well, I heard a terrible crash. * * *

"Q. Describe the noise as well as you can that you heard at that time.

"A. Well, as near as I could describe it is that it came together with such a crash that it made an extra-ordinary loud sound. The man's hold broke and he fell between the cars. My engine was still running. I did not stop the engine and I was leaning out of the window this way watching the movements of the train."

Frank Greenfield, who was employed by the Clute Coal Company, and was working in the yard, testified:

"Q. How was your attention attracted, if at all, to this accident?

"A. By the loud crash of the car.

"Q. Could you tell the jury, or describe to the jury, more definitely what kind of a crash there was?

"A. Why, it was pretty hard. * * *

"Q. You may answer and describe what you heard. "A. I heard this loud crash of the car, and I spoke up and said * * *

"Q. To what extent have you observed switching operations and the coupling together of cars, and heard the incidental noises?

"A. Why, I have worked around the railroads quite a good deal, heard the way they — saw the way they —

"Q. You worked for the Michigan Central?

"A. Yes, sir.

"Q. Where?

"A. Grayling.

"Q. How long?

"A. Pretty near two years for the Michigan Central.

"Q. In the yards?

"A. Yes, sir. * * *

"Q. Now, I will ask you to describe, if you can, these noises compared with the noises you have theretofore heard in the coupling of cars. * * *

"A. It was pretty hard, pretty hard crash.

"Q. Compared with others?

"A. Yes, sir, considerably harder than generally is on coupling cars together."

Lynn Robinson, a school boy 12 years old, testified:

"I was just coming around the corner by Pete Hayes' when Mr. Beauchamp was going up the side of the car. That is on the corner of Marquette and Midland street. Marquette ends right there. As I was coming around the corner I saw Mr. Beauchamp go up the side of the car and I got over by the oil station there and the train started up and gave such a bump that Mr. Beauchamp fell off. Mr. Beauchamp was holding the brake wheel.

"Q. Did you hear any noise when the cars bumped together?

"A. I heard a big crash. * * *

"Q. Have you at different times heard when cars coupled together in switching operations?

"A. Yes, sir. * * *

"Q. You saw this crash and the noise it made, how did it compare with noises you have heard theretofore when cars were coupled together?

"A. Why, it was louder."

William Martin, who was within 25 feet of the track, testified:

"I was standing at the Midland street crossing with two friends of mine, and Mr. Beauchamp cut across the tracks going southwest, and climbed up on the car, and had about released that brake and was about to come down and this car came in with a crash, which I heard a lot of cars hard come together, and this is the loudest I ever heard, and he was flung between the cars, between them onto the track, and the cars ran over his legs and they were mangled. * * *

"Q. How was it moving with reference to speed?

"A. Well, it was going fast."

Earl Bement, a school boy, 19 years of age, who happened to be in the vicinity, and observed what took place, testified:

"He was standing on a platform there, and he had hold of the brake wheel, whether he was moving it or not I don't know, and I also saw coming from the south a box car and engine, one box car and engine, and some instinct told me there was going to be an accident, whether the rate the box car was coming into the one Mr. Beauchamp stood on or not, I can't tell, but I felt there was going to be an accident, and before I could holler or anything the cars had collided with quite a jolt and it knocked him entirely loose from the car and he fell and hit on the car that struck the original car he was standing on and knocked him against it, and then he fell and hit the other one, and he finally hit the ground, and he grasped to catch hold all the way down. * * *

"Q. What can you tell the jury as to the speed of that engine and car?

"A. Well, I cannot tell it in miles per hour how fast that car was moving, but something alarmed me. I don't remember it making any extraordinary noise because of my high excitement, and I was running at the time it struck."

The defendant's testimony was in conflict with some of this evidence. This testimony clearly made it a question of fact for the jury whether it was the usual and ordinary operation, or whether it was the unusual and extraordinary operation. The rule quoted was given to the jury by the trial court to aid them in coming to a conclusion, and the proofs clearly justified the jury in reaching the conclusion which they did. The opinion of my Brother clearly eliminates this question of fact.

The switching operations at the moment were being done within very narrow limits. The engine had but one car to contend with, and, therefore, did not have to contend with any considerable amount of slack in its train. The engineer knew he was not far away from the car, even though he could not see it. If he could not see it, he should have either stopped or proceeded with caution. Is it a question of law or fact whether he was operating his engine in the usual and ordinary way, or in the unusual and extraordinary way? If the operation was on a curve and he could not see the car he should have either stopped or operated his engine more prudently. But it is said the signal was given to back up and no signal given to stop, and the engineer had a right to keep going until he was signaled. The engineer probably had the right to keep going in the ordinary and usual way. He did not have the right to keep going in an unusual and extraordinary way. It was not the fact that he kept going which caused the accident, but it was the going in an unusual and extraordinary way that caused it. If he had been backing in the ordinary and usual way he probably would not have broken the hold of the deceased from the brake wheel.

How are you going to determine how fast the engineer was moving? Whether he was going slow or fast is not a legal question. It is a question of fact when the evidence is in conflict. How are you going to determine whether the engineer was operating his engine in the usual and ordinary way, or in the unusual and extraordinary way? Is that a question of law, or is it a question of fact?

It is said the engineer did not know that the deceased had left the ground and gone on top of the car. Why should that make any difference? The engineer had no right to operate his engine in an unusual and extraordinary way, whether the deceased was on the ground or on top of the car. If this testimony does not raise a question of fact as to whether the engineer operated his engine in the ordinary and usual way, then it would be extremely difficult to raise that question in a court of justice.

I think the judgment should be affirmed, with costs.

McDONALD, C.J., and MOORE, J., concurred with BIRD, J.