Plaintiff, engineer of defendant's train No. 7, brings this action to recover damages for injuries received near Mesick in a head-end collision with the detached engine of freight train No. 42. Mesick is a day and night telegraph station on defendant's Northern Division. North of Mesick about three miles is Bagnall, which is a flag station. Between Mesick and Bagnall, and about two miles north of Mesick, there was a siding known as ‘Claggett's Siding.’ On the 18th day of March, 1905, a special freight train known as 42 was running south, and, at Bagnall *359 Siding, nine cars and the tank of the engine left the track, and the wrecked cars covered the siding and the main line. This wreck occurred at about 6 o'clock a. m. The train crew succeeded in getting the engine back on the track, and they ran south to Mesick and reported fully what had occurred and the situation of the wrecked cars, so that the train dispatcher knew that the siding at Bagnall was completely obstructed and the main line blocked. Upon receiving this report, the train dispatcher sent the following train order No. 6 to No. 42: ‘Work extra 42 will work 7:55 a. m. until noon between Mesick and Bagnall with right over freight trains. Freight and extra trains will protect against extra 42.’ This order was repeated and made complete at 8:05 a. m. and delivered to Conductor Coe, who was the conductor of No. 42. After receiving the order, Coe left his head brakeman, Moody, at Mesick to notify No. 7 of the wreck at Bagnall, and he and his engineer, Criss, took some men upon the engine and returned to the wreck. A little later, the engineer again ran the engine back to Mesick and to a toolhouse south of the depot, procured some **234 tools, and again returned to the wreck at Bagnall. At about 8 a. m. on this morning in question, the plaintiff, who was engineer of No. 7, which was a regular passenger train, left Cadillac on its regular run north to Frankfort. The balance of the train crew were Jepson, conductor, and Doyle, fireman. At the stations between Cadillac and Mesick, sectionmen had been collected by order of defendant's superintendent, and these men were ordered to take No. 7 and go to the wreck to help in the work of clearing the track, and they went on board of No. 7, as ordered. At about 8:54, schedule time, No. 7 arrived at Mesick, and as plaintiff ran in he found the board out. After plaintiff had made his usual station stop at Mesick, Brakeman Moody came onto his engine, and, addressing him as ‘Al,’ said: ‘42 has had a wreck at Bagnall, and the tank and nine cars are off the track.’ Plaintiff did *360 not know the man, and he carried no flag and wore no uniform or anything to indicate that he was in the employ of the railroad company. This person made no further remark or explanation, and plaintiff alighted from his engine and went to a water-closet. After being gone a few minutes, he returned to his engine, and, after getting some tools from it, went to work upon it, and remained by it constantly until he pulled out, as hereinafter stated. As soon as No. 7 arrived at Mesick, Conductor Jepson was handed the following order or dispatch from the train dispatcher: ‘Durand, 3-18-05. No. 7 report at Mesick for instructions. J. S. M.’ After No. 7 had been waiting at Mesick about one hour, the train dispatcher sent and delivered to Conductor Jepson this order: ‘Jepson: Leave Mesick in time to transfer at Bagnall with No. 4. J. S. M.’ During all this time the order board remainder out. At some time during this interval, while in the depot, Moody told Jepson there had been a wreck at Bagnall and told him he was sent back for the purpose of flagging for the wreck at Bagnall. A short time after Jepson received the order to leave Mesick in time to transfer with No. 4 at Bagnall, the train dispatcher, who had been and was talking over the wire with the agent at Mesick about the wreck, asked the agent what was holding No. 7, and the agent said to Jepson: ‘J. S. M. wants to know why No. 7 don't go and get the sectionmen over there that are on the train.’ And Jepson replied that he had an order to await instructions, and he had not cleared from that, and the agent wired the train dispatcher that Jepson said he was waiting for further instructions, and that the board was out. As soon as Jepson made this reply, the agent worked his telegraph*361 instrument for a few minutes, and then handed Jepson a clearance card from the order board, and at the same time he was handed the order No. 14, being, in substance, an order to run 2 hours and 50 minutes late Bagnall to Frankfort, and indicating a transfer at Bagnall with No. 4. Upon receiving this clearance card and order, Jepson gave the plaintiff copies, and went aboard his train, and pulled the signal in the engine cab to go ahead. Just as the train was starting, Jepson saw Moody, and he called to him from the coach platform to go with him. At the time he started north from Mesick with his train, plaintiff had no knowledge or information whatever that 42 was on the track, but though it was off the track at Bagnall and unable to move, and thought he had a clear track from Mesick to the wreck, and had no reason to believe anything to the contrary. When Jepson gave the engineer the signal to go forward on the order, he (Jepson) thought he had a clear track to the wreck, and did not know that 42 was working on the track between Bagnall and Mesick. No. 4 was a passenger train south-bound from Frankfort to Cadillac, and was due at Bagnall at 11:33 a. m. It was about 10:30 that No. 7 left Mesick. The norning was foggy. As No. 7 was running downgrade at 10 or 20 miles per hour, and while on a curve about 3/4 or a mile north of Mesick, it met No. 42 returning to Mesick, and a head-on collision resulted, completely demolishing both engines, killing the firemen on both engines, and seriously and permanently injuring the plaintiff. The brakeman, Moody, testified, as did the conductor and engineer of No. 42, that he was instructed to flag No. 7 and hold the train at Mesick until the engine of No. 42 returned to Mesick.
Veit v. Ann Arbor R. Co. 150 Mich. 358, 358-361, 114 N.W. 233, 233 - 234 (Mi.1907)
