Wagner v. Detroit & Mackinac Railway Co.

R. B. Burns, J.

Plaintiff instituted suit against defendant Detroit & Mackinac Railway Company for injuries under the Federal Employers’ Liability Act, 45 USCA 51. Defendant railway joined Abitibi as a third-party defendant. A jury returned a verdict for plaintiff in the amount of $35,000. The jury also returned a verdict in favor of the defendant railway against the third-party defendant in the amount of $17,500.

The defendant railway moved for a new trial claiming that the jury verdict was excessive. The motion was denied.

Abitibi moved for judgment notwithstanding the verdict, claiming that there was no right of contribution in an FELA action. The motion was granted.

Defendant railroad appeals.

Plaintiff was injured while uncoupling a freight car from the end of a string of approximatély 20 cars. After uncoupling the car, he gave a signal to be relayed to the engineer to proceed to move the cars. The cars were jerked, resulting in a double 2 X 4, which was used as a prop to hold the lading in place on the end of the car, breaking, falling, and hitting plaintiff on the head, causing his injuries.

The railway company claims the lumber was loaded by the third-party defendant Abitibi. The lumber was loaded with the double 2 X 4’s being placed upright at each end of the lading to prop the load, with steel straps being placed over them and anchored to the floor of the car. In this instance, the straps were not nailed or otherwise secured to the double 2 X 4’s as required by rule 10, section 1 of the rules of the Association of American Railroads.

A jury’s verdict will not be set aside if it is not so excessive as to shock the judicial conscience. Watrous v Conor, 266 Mich 397; 254 NW 143 (1934). The jury verdict under the facts and circumstances of this case is supported by the evidence and does not shock our conscience.

In Fowles v Briggs, 116 Mich 425; 74 NW 1046 (1898), the Court held that a shipper of lumber was not liable for injuries to a brakeman caused by the shifting of the lumber, negligently loaded, where the accident happened after it had been the duty of the railroad company to provide for inspection of the car. On page 428 (74 NW at 1047), the Court stated:

"In the present case the defendants owed the railroad company the duty of using ordinary care in loading the car in question; but, before the car came to decedent, it was the duty of the railroad company to provide for the inspection. Here was the intervention of an independent human agency.”

The trial judge followed the Fowles case when granting the judgment notwithstanding the verdict.

In Davis v Thornton, 384 Mich 138; 180 NW2d 11 (1970), Justice T. G. Kavanagh stated on pages 148-149 (180 NW2d at 16-17):

"The general rule — that an intervening, independent and efficient cause severs whatever connection there may be between the plaintiffs injuries and the defendant’s negligence (Fowles v Briggs, 116 Mich 425; 74 NW 1046 [1898]; 38 Am Jur Negligence, § 68, p 724 et seq.) —is not controlling if the intervening act was reasonably foreseeable. 38 Am Jur, Negligence, § 70, p 726 et seq., Skinn v Reutter, 135 Mich 57; 97 NW 152 (1903), and also Comstock v General Motors Corporation, 358 Mich 163; 99 NW2d 627 (1959), where we quoted with approval 2 Restatement Torts, § 447, p 1196:

" 'The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if

" '(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

" '(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted.’ ”

The case was submitted to a jury which found Abitibi negligent and that Abitibi’s negligence was a proximate cause of the injury.

The judgment notwithstanding the verdict is set aside and the verdict of the jury is reinstated.

Costs to plaintiff against both defendants. Defendant Detroit & Mackinac Railway Company may assess costs against third-party defendant Abitibi.

Quinn, J., concurred.