# Gardner v. Michigan Central Railroad Company

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United States Supreme Court
150 U.S. 349
Gardner v. Michigan Central Railroad Company
Statement by Mr. Chief Justice FULLER:
This was an action brought in the circuit court of the United States for the western district of Michigan by Frederick Gardner, a citizen of the state of Indiana, against the Michigan Central Railroad Company, a corporation of the state of Michigan, to recover damages for injuries alleged to have been inflicted by reason of the negligence of the defendant in causing, and allowing to remain for some time prior to the accident complained of, a hole in the planking of the crossing of a thoroughfare near its station house in Niles, Mich., known as 'Fifth Street,' contrary to its duty in that behalf, whereby the plaintiff was injured without negligence on his part; and also in ordering the plaintiff, who was a night switchman at that station, to do certain coupling and uncoupling of cars, out of the line of his employment as switchman, and more dangerous.
Upon the trial before the district judge, the evidence tended to show that Fifth street, in the city of Niles, crossed the defendant company's tracks, of which at this crossing there were, besides the main track, several others, occupying a large portion of defendant's right of way; that the defendant's station house, freight house, and other depot buildings were located at this point; that 32 feet of the crossing were planked between the tracks by the defendant; that near the southeast corner of the planking, and about 12 or 15 feet therefrom, stood a switch, which moved the track south, in adjusting it for the passage of trains; and that a month or so before the injury to the plaintiff a car wheel had struck the end of a plank next to the rail of the track, by reason of the switch not being properly adjusted, making a hole in the surface several inches in length and width; that it was the duty of the yard master and road master of defendant to keep the roadbed and crossings in good condition and repair; that the yard master must have known of the fracture of the plank; and that other employes had actual knowledge of its existence, but that plaintiff, who worked only during the night, had not been informed and did not know thereof. The yard master testified that he did not remember 'seeing any bad spots' in the planking,-'not to amount to anything.' 'There might have been a car off, and the ends of the plank broke down a little. There might have been, but nothing that I would think would be dangerous.'
The evidence further tended to show that the yard master of the company had the control and management of the switches and of the work belonging to the 'making up trains;' that in 1881 he employed the plaintiff to tend switches at night; that prior to March, 1882, he had ordered him not to engage in the work known as making up trains, which included coupling and uncoupling cars, and afterwards, and prior to May 16, 1882, the supply of help for making up trains in the morning not being equal to the demand, he required the plaintiff to assist in such making up, including coupling and uncoupling. It appeared that the yard at night was in charge of a yard foreman or assistant yard master, and the evidence tended to show that on the 16th of May the plaintiff, acting in obedience to the orders of such assistant yard master, attempted to uncouple cars just before he received his injury, the hole in question being hidden under the car being uncoupled; that there was a down grade sloping west at the place where the plaintiff was, and the cars, according to necessity and general usage, were in slight motion at the time; and that, as the plaintiff was stepping out from between the cars, one of his feet was firmly caught in the hole, and the injuries inflicted in consequence.
On the trial of the cause it appeared that the plaintiff had originally commenced suit in the circuit court for the county of Berrien, Mich, and that the cause had there been tried, and resulted in a verdict and judgment in favor of the plaintiff, whereupon the defendant brought error to the supreme court of the state, which reversed the judgment and granted a new trial, and counsel for defendant gave in evidence the printed record used in said supreme court, together with a copy of the opinion of that court in the premises, and also a certified copy of the judgment in the state circuit court, in obedience to the mandate of the supreme court; and it was agreed by the parties that, on the filing of its opinion, the supreme court entered judgment in the usual form, reversing the judgment of the court below, and granting a new trial in the suit. The judgment of the state circuit court recited that, upon the filing of a certified copy of the judgment of the supreme court reversing the prior judgment, and vacating the verdict of the jury, and the placing of the cause upon the calendar for trial, the plaintiff came by his counsel, and voluntarily withdrew his suit, and submitted to a nonsuit therein; wherefore, 'on motion of said plaintiff, by his said attorneys, it is ordered by the court, now here, that the said plaintiff be, and is hereby, nonsuited, but not to prevent the right of the plaintiff to bring any suit in any court,' and for costs in favor of defendant. The opinion of the supreme court is reported in 58 Mich. 584, 26 N. W. 301.
The headnotes are as follows:
'(1) A switchman, who had been strictly cautioned against having anything to do with coupling cars, tried to uncouple some while the train was moving, and had his foot caught where the planking had been for some time slightly broken, though the defect had not been seen by him as yard man and the railroad company had no notice of it. Held, that he could not recover for the injury resulting to him.
'(2) A railroad employe takes the ordinary risks of the work for which he hires; and, if the company has used proper diligence in choosing competent servants, it is not liable in damages for an injury to one of them caused by the carelessness of another.'
The case in the circuit court, having gone to the jury, resulted in a verdict in plaintiff's favor, and a motion for new trial was made by defendant, which was heard before the circuit and district judges. The circuit judge was of opinion that upon the record there was no negligence on the part of the company, and that the case should have been withdrawn from the jury, and a verdict directed for the defendant. The district judge thought otherwise, but a new trial was granted, and, the case being retried upon the same evidence, the district judge, accepting in that regard the views of the circuit judge, instructed the jury to find for the defendant, which was done, and, judgment having been entered, the cause was brought to this court by writ of error.
Edward Bacon, for plaintiff in error.
Ashley Pond, for defendant in error.
[Argument of Counsel from pages 352-355 intentionally omitted]
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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