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side of it, and over to the flat car upon which the trucks were loaded. The witnesses do not specify the particular switch track upon which this flat car stood; but there was at least one switch track filled with cars between it and the repair tracks, so it is claimed the view of track C from the flat car would be obstructed. Before going after the ties, deceased and Rothermal left their tools at the door of the toolhouse, which was a room in the long shop building used for storing tools, and located west of that part of the building occupied by the carpenter shop. The time they were detained at the flat car was stated by the witnesses at from 30 to 50 minutes. Returning from the flat car at the end of this time, the deceased and Mr. Rothermal took their tools from where they had left them, and, not seeing Mr. Seeburger, they went west along track C to a group of cars standing on that track toward the west end of it, and had just begun work on the first of these cars when other cars were pushed against the opposite end of them, setting them in motion and fatally injuring the deceased.
Mr. Seeburger was not a witness at the trial; his absence was accounted for by his illness. After sending the deceased and Mr. Rothermal to the flat car, and while they were thus absent from the vicinity, and, it is claimed, out of sight of track C, Mr. Seeburger unlocked the switch at the west end of that track and directed a switching crew to pull the track and refill it. At this time six of the cars then on the track were unrepaired. The switchmen pulled all the cars from the track and, separating the unrepaired cars from those that had been repaired, left the latter on switch track No. 2, and shoved or kicked the six unrepaired cars back down the lead track, so that they rolled into the west end of track C, and there stopped. The switch crew then went on switch track No. 3, and there, coupling to a string of 21 out of order cars,
pulled them out on the lead track and pushed them down the lead track to the west end of track C, where they struck and set in motion the six cars previously left there, and upon one of which deceased was then at work.
It is the claim of plaintiff that Mr. Seeburger had determined to pull these cars on track C some time before he sent the deceased and Mr. Rothermal to the flat car, and that at the time he directed them to go he was preparing to pull the track, and in fact caused it to be pulled almost immediately after they left, and that he should have so stated to Mr. Harsen and Mr. Rothermal, as their usual place of work was on track C.
The claim of plaintiff is stated in the brief as follows:
"It is perfectly apparent, as we think, from the evidence heretofore reviewed by us, that at the time Seeburger directed the deceased and Rothermal to go with Mastin to the flat car he was preparing to pull the main repair track, and then expected to have it pulled almost immediately; and it is altogether likely that he had planned to pull the track before he had sent the deceased and Rothermal to the steam track, for, as we have seen, he so informed Jewell and Arnold near the same time when directing them to fix the brakebeam. Yet Rothermal testified that Seeburger did not inform him and the deceased that he would pull the track, or warn them to stay away from it, at the time he sent them to the flat car with Mr. Mastin, or at any other time that day.
“Defendant's witness Arnold testified that when the main repair track was being pulled, Seeburger would be at the switch, or 'up around there,' and that it was his custom to be around the track when it was being pulled and refilled during working hours. Yet on this day nobody saw him from the time he unlocked the switch until after the accident. Conductor Green of the switch crew that pulled the track did not see him again during working hours that day after he had unlocked the switch. Arnold, who was working near
the place of the accident, did not see him from the time the track was pulled until after the accident. Jewell, who was with Arnold, does not mention seeing Seeburger after the latter had gone to give orders to pull the track. Rothermal says that Seeburger was not in sight when he and the deceased came from the flat car to the shop for their tools and went up the track to the car where the accident happened, and that he first saw him coming from the east a few minutes after the accident. No other witness testified to having seen Seeburger between the unlocking of the switch and the accident.
"The situation presented, therefore, by the conceded facts and the inferences fairly warranted by the evidence, is this: Mr. Seeburger, who alone possessed the power of safety or danger over the main repair track, at a time when that track was a place of safety, and a considerable portion of the cars thereon were yet unrepaired, and shortly before, as he knew, he would convert it into a place of danger, and while he was preparing to make the change, sent the deceased away rom the vicinity of that track to a place where observation of it was cut off, on an errand which he (Seeburger) knew was but temporary, without giving deceased any warning of the proposed change on the main repair track, or any direction as to his work after the temporary errand should be accomplished, and, while deceased was thus absent by direction of Seeburger, the latter changed the track from safety to danger and then dropped out of sight, so that when deceased returned neither Seeburger nor any one in his place was there to either direct the deceased where to work or warn him away from the main repair track, and thereupon the deceased voluntarily went upon the track to work, without discovering the danger, and was injured.”
There is testimony tending directly and by reasonable inference to sustain these contentions made on the part of the plaintiff.
The respective rights of employers and employed under the Federal statute involved here, and its various amendments, have received the careful attention of the Federal courts, and full discussions may be
found in Second Employers' Liability Cases, 223 U. S. 1 (32 Sup. Ct. 169, 38 L. R. A. [N. S.] 44); Michigan Central R. Co. v. Vreeland, 227 U. S. 59 (33 Sup. Ct. 192); St. Louis, etc., R. Co. v. Hesterly, 228 U. S. 702 (33 Sup. Ct. 703); Central R. Co. of New Jersey v. Young, 200 Fed. 359, 118 C. C. A. 465; Grand Trunk Western R. Co. v. Lindsay, 201 Fed. 836, 120 C. C. A. 166; Louisville, etc., R. Co. v. Wene, 202 Fed. 887, 121 C. C. A. 245; Pennsylvania R. Co. v. Goughnour, 208 Fed. 961, 126 C. C. A. 39.
Under the principles of law stated in these cases, especially the last two, we think it cannot be said, as a matter of law, that there was no negligence shown on the part of Mr. Seeburger.
Judgment is affirmed.
MCALVAY, C. J., and BROOKE, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.
CRESSLER V. KING PAPER CO.
MASTER AND SERVANT-NEGLIGENCE-PROTECTING GEARS AND MA
Evidence tending to show that plaintiff's decedent was
caught on a revolving shaft, upon which he was making repairs, that one of the pins or keys on the shaft projected, but not showing what his clothing caught on, and testimony that he could have had the machinery stopped while he was adjusting the gears, held, to warrant a di. rected verdict for defendant.
Error to Kalamazoo; Knappen, J. Submitted April 24, 1914. (Docket No. 123.) Decided July 24, 1914.
Case by Bertha Cressler, administratrix of the estate of Charles F. Cressler, deceased, against the King Paper Company for the negligent killing of decedent. Judgment for defendant on a directed verdict. Plaintiff brings error. Affirmed.
Thomas J. Cavanaugh and L. H. Titus, for appellant.
Fred L. Vandeveer and E. M. Irish, for appellee.
MOORE, J. This action is brought by Bertha Cressler, administratrix of the estate of Charles Cressler, deceased, to recover damages for the death of her husband, caused by injuries received by him while in the employ of defendant. The trial judge directed a verdict in favor of the defendant. The case is brought here by writ of error.
Mr. Cressler was, at the time of his death, 31 years of age, a healthy man of good ability. His wife was employed in defendant's plant, and in her testimony described the character of his work as follows:
“Mr. Cressler started to work for the King Paper Company a little over a year before his death. I think his first work was installing machinery in the new part. He helped do that. That was before the mill was put in operation. I do not know how many months he was engaged in work of that character. As to whether he was placing overhead shafts or placing machines themselves, he was helping at a little bit of everything like that. I don't know how many men were engaged in installing the machinery, or how long he was so engaged. Approximately I would say probably about five months, and the balance after that was through he was transferred to the millwright gang. They repaired everything over the mill. They kept the machinery in repair after it had been installed, and, if it became necessary to install a new piece, the millwright gang would do it, and made repairs and