McLean v. Pere Marquette Railroad

Grant, J.

(after stating the facts). 1. Defendant’s first contention is that there is no evidence of negligence. Defendant’s trainmaster, a witness in its behalf, conceded that it was unsafe to load an open rack car with such material thrown loose in it. There was sufficient evidence to establish negligence on the part of some one in furnishing and loading the car in the manner described. The *485 block or piece of wood was found immediately after the accident with the dent of the flange of the car wheel on it. It was of the same material as that with which the car was loaded. The car had passed over the track only 10 or 15 minutes before. It is a fair inference that it fell from that car, and that in some way it lodged upon the rail. It might have lodged there as it fell. The train was going fast, and as the block struck the ground it would naturally roll some distance before stopping, and in this way might have lodged upon the rail. It might have been drawn there by the suction of the train. The evidence of the effect of the suction of a train upon pieces of wood the size of this was conflicting. There was no other probable theory of the cause ofl*the accident. This is not a case, therefore, for the application of the rule that an accident is not of itself evidence of negligence. Schoepper v. Chemical Co., 113 Mich. 582 ( 71 N. W. 1081 ).

2. The mere fact that, as the train passed, plaintiff saw the car, and thought it was dangerous to load such a car with such material in such manner; and that he, under the direction of the section foreman, rode over the track immediately after, is not conclusive evidence of contributory negligence. Neither did he thereby assume the risk. He had seen nothing of the kind before, and had the right to assume that the defendant had furnished a proper car and loaded it in a proper manner. The danger was not so obvious as to require him to place his own judgment at •once against that of his employer. The question of contributory negligence was properly submitted to the jury.

3. It is also contended that the furnishing and loading of the car were the acts of fellow-servants. The precise •claim is that the car was furnished to the shipper by defendant’s station agent at Reed City, whose province it was to determine the kind of cars to be used; that it was the duty of the train conductor to inspect every loaded car before taking it, and to determine whether it was properly loaded, and to refuse to take it if, upon inspection, he de *486 termined it was not properly loaded; and that these two> employes were plaintiff’s fellow-servants. The question as to the conductor may be eliminated from the controversy-by the fact that there is no evidence of any other method of loading this mill refuse into cars for transportation. There is no suggestion, even, of any other method. The method was proper for a suitable car. The plaintiff gave no direct testimony showing by whose authority or direction this car was furnished. The only testimony upon the point is that of defendant’s trainmaster, and is as follows

“ As trainmaster I have supervision over the station agents of my division in the handling of cars for trains. I am acquainted with the manner in which agents obtain cars for their customers. The station agent determines, what sort of a car shall be delivered to a customer who wants one. The customer applies to the agent, and the agent orders the kind of a car he wants from the car distributor. If the agent wanted a stock car for sheep, he would not specify to the car distributor that he wanted it to put sheep in. He would simply order a single or double deck stock car for a given destination. If he wanted a rack car, he would not specify to the car distributor what kind of wood he wanted to put in it. It appears that on the day on which plaintiff was injured a- rack car loaded with mill refuse was shipped out of Reed City. The agent at Reed City determined what kind of a car should be used for that purpose. If he had chosen to order a box car, or a gondola, he could have obtained it.”

Under this record the defendant intrusted its station agent to .select proper cars for the transportation of property over its road. The authority of a station agent is; very extensive. His actions and contracts in all things within the scope of his authority bind the company. L Wood on Railroads, § 165.

It is established by the decisions of this court that the primary duty to provide cars, etc., reasonably safe- and in reasonably good condition for the purposes for which they are to be used, is one which cannot be delegated. Thomas v. Railroad Co., 114 Mich. 59 ( 72 N. W. 40 ); Sheltrawn v. Railroad Co., 128 Mich. 669 ( 87 N. *487 W. 893 ); Morton v. Railroad Co., 81 Mich. 425 ( 46 N. W. 111 ); McDonald v. Railroad Co., 132 Mich. 372 ( 93 N. W. 1041 ). This duty is not performed by furnishing a car designed, suitable, and safe for one purpose, to be used for another purpose for which it is unsuitable and unsafe. The shipper in this case did not ask for a car suitable and safe for the transportation of barrels, but for one suitable and safe for the transportation of his mill refuse. The defendant is equally responsible for furnishing a car unsuitable and unsafe for the use to which it is to be put as it would be in’ furnishing a car of the proper kind in an unsafe condition. Cases of defective loading (Miller v. Railroad Co., 123 Mich. 374 [ 82 N. W. 58 ]) have no application to cases where defective appliances and machinery have been provided. See a discussion of this subject in Beesley v. F. W. Wheeler & Co., 103 Mich. 203 ( 61 N. W. 658 , 27 L. R. A. 266).

Some errors are assigned upon certain portions of the charge of the court. They are, in the main, controlled by what we have already said. Considering the charge as a whole, it was a correct exposition of the law, and we think there is no occasion for holding that the jury were misled by it, although in one instance a sentence standing by itself is not strictly correct.

Judgment affirmed.

The other Justices concurred.