Greenwald v. Marquette, Houghton & Ontonagon Railroad

G-raves, O. J.

Decedent was tail brakeman under Samuel Wilks, wbo, as defendant’s engineer, ran a train for the carriage of iron ore. There were three other brakemen and a fireman. Wilks employed the men and had power to dismiss them. A train of empty cars had been taken to Ishpeming and left; and the locomotive having been turned around on the turn-table, stood on a sidetrack, and the engineer and men were near by. A number of cars loaded with ore were distant some five or six hundred feet, ready to be hauled away. The engineer observed to the men that he and the brakeman would go up and get the loaded cars, and he directed the fireman to back up the locomotive. There were two switches to be attended to, the first being some fifty feet from where the locomotive was standing, and the other further on. The men started and the engineer ran ahead, so as to attend to the further switch, and decedent started for the first switch. The fireman proceeded to back up the locomotive slowly. At this time a train was going in the same direction on the main track and was making some noise. The bell and whistle belonging to it were both going. The two tracks were within some six feet of each other. The first switch was passed and the engineer had taken hold of the stand to throw the second switch, when some one made an outcry, and decedent was then discovered on the track under the backing locomotive. He was fatally hurt and died in a few minutes. He was between sixteen and seventeen years of age, and had been sometime engaged in the duties which then occupied him. He had sufficient capacity for the position.

This suit was brought on the alleged ground that the cause of his death was negligence of defendant’s servants, and the negligence is said to have consisted (lst)*in the order to the fireman to back up; and (2d) in the failure of the fireman to ring the bell or blow the whistle.

The circuit judge was of opinion that it appeared conclusively that decedent contributed by his own want of proper care to what happened and he so advised the jury. *200 And a careful inspection of tlie record leaves no room to question the accuracy of the charge.

The plaintiffs can fully prove that decedent knew that the locomotive was moving or about moving back, and it also shows that there was room enough for him to perform his duties without being hurt. But this is not all. The order to back up was a proper one beyond question; and as decedent was participating in the operations connected with the backing up of the locomotive and knew what was going on and what to expect, he does not seem to have stood in need of warning by bell or whistle. He already knew enough to admonish him to keep out of, the way. Moreover it maybe questionable whether the sound of the bell or whistle would have been distinguished above the din made by the other train. But no matter.

Again, let it be admitted that.the failure to'sound the bell and whistle was negligence, and that it caused the catastrophe; still it was the negligence of the fireman, who was a fellow-servant and for whose negligence the defendant could not be held liable to decedent.

The case is too clear for extended comment.

The judgment is affirmed with costs.

The other Justices concurred.