131 Mich. 544 | Mich. | 1902
This is an action for negligent injury to a passenger, in which the plaintiff recovered a verdict and judgment of $200, and defendant brings error.
The plaintiff became a passenger in a caboose attached to a freight train. Before entering the caboose, he accepted and signed a ticket in which he agreed to exercise the highest degree of care to protect himself from injury, and agreed, if injured notwithstanding such care, to make no claim against the company. The defendant, however, does not, in the brief filed in this court, rely upon this contract as conclusive of plaintiff’s rights; but it is insisted that the plaintiff’s testimony, taken as a whole, shows that he was guilty of contributory negligence, and that a verdict should have been directed for defendant.
The testimony of the plaintiff tends to show that, when he entered the caboose, the front door of the caboose stood open; that he then knew that the train crew was still engaged in switching, and that cars were likely to be brought in contact with the caboose with greater or less force; that there was a chair in the caboose, not fastened down, and that there were abundant seats which were fastened solid; that this chair was the chair provided for the conductor, and for use in connection with the table in one corner of the caboose, provided for the conductor for making his memoranda upon; that, instead of taking one of the regular seats provided for passengers, plaintiff took a seat in this chair, facing thp front door, and awaited events; that he leaned over to sneeze, holding his head between his two hands, and just at this critical moment the collision occurred, threw him against the door, and caused the injuries complained of.
So far as the contact of the car with the caboose is concerned, and the resulting jar, it may be said that it was
Plaintiff relies upon the case of Moore v. Railroad Co., which was twice before the court, and is reported in 115 Mich. 103 (72 N. W. 1112), and again in 119 Mich. 613 (78 N. W. 666), and upon the case of Stoody v. Railway Co., 124 Mich. 420 (83 N. W. 26). Neither case is authority for the plaintiff’s recovery in the present case. In the Moore Case the collision occurred before the plaintiff had an opportunity to occupy a seat in the car. The collision occurred when he was in the act of sitting down. In that case, however, the rule was recognized that one who takes passage on such a train is presumed to understand that the
We are constrained to hold that, as matter of law, plaintiff was not in the present case in the exercise of due •care, and the judgment will be reversed, and a new trial ■ordered.